As we prepare for the upcoming congressional testimony of Special Counsel Robert Mueller, we thought it would be helpful to tune into the Talking Feds podcast, which taped a series of live shows in Washington, D.C., this week, co-sponsored by the American Constitution Society and Georgetown Law’s Institute for Constitutional Advocacy and Protection. On Thursday, there were two live panels focusing on Mueller, including one that previewed his upcoming testimony. Hosted by Washington Post opinion columnist and former Deputy Assistant Attorney General Harry Litman, the panel featured former FBI Deputy Director Andrew McCabe; Ron Klain, former chief of staff to Vice President Joe Biden, Matt Miller, former senior Justice Department official; and Tim Lynch, former deputy general counsel to the House Oversight Committee. Here, in brief, are five key takeaways from their discussion to bear in mind in the coming weeks.

Congress: Don’t Swing for the Fences
Lynch set the tone of the conversation early with an important insight: “If you try to swing for the fences, oftentimes it falls flat. What they need to do is use this opportunity as a reset button. Barr was successful in his misinformation campaign around the report, and so this is an opportunity—since most Americans haven’t read the report—to educate the public….”

It is unfortunately true that the Mueller report was received with confusion or indifference by much of the American public. Thanks, in large measure, to Attorney General Bill Barr’s PR campaign on behalf of President Donald Trump and the long delay in the report’s release, some people were led to believe that Mueller’s work exonerated the president. By honing in on the report’s most damning revelations about the president’s conduct, Democrats in Congress will try to disrupt that exculpatory narrative and to shift the needle of public perception. Matt Miller made the point bluntly that there was a time when the Mueller investigation was broadly seen as an “existential threat” to the Trump administration, but that time has now passed. Democratic members have to acknowledge that is the current political state of play regardless of whether they support impeachment or not.

Mueller is Going to be a Reluctant Witness

Andrew McCabe emphasized that Mueller “is going to be a reluctant witness. On his best and most cooperative days, the director is not a strong witness because he’s dramatic or he’s verbose or because he lays out a narrative in a way that other witnesses do. He’s a strong witness because he knows his facts, he’s been impeccably prepared, and he’ll answer questions directly.” As such, McCabe counseled direct, leading questions that would lay out the elements of criminal obstruction of justice and demonstrate that the president’s conduct satisfies them.

Lynch proposed a more indirect strategy of asking Mueller to describe the substantial evidence of obstruction he uncovered in “his own words.” If he proves to be a more forthcoming witness than many anticipate, such a strategy could work well, but members should be ready to pursue both approaches.

The GOP Strategy Will Likely Have Two Elements: Confuse and Delay

“Poor questioning,” the appearance of a “food fight” and “partisan bickering” will all impede the effectiveness of the hearing in shifting public perception. As such, Republicans can be counted upon to use their questioning time to make speeches that muddy the waters. Repeating false assertions about the investigation’s underpinnings and its conclusions has worked well as a strategy in the weeks since the report’s release, and there is no reason to suppose that it will be abandoned during the two hours that Mueller faces each committee. The only limiting factor to that approach is the risk of appearing hysterical in contrast to composed Democrats and a no-nonsense witness.

There is also, as Klain pointed out, the possibility that some Republican members will ask questions designed to solicit answers that are helpful to them. “I think he will give more answers that are helpful [to Republicans] than people believe,” he added.

Don’t Forget the Deputies

Congress should remain resolute in its insistence that Mueller’s deputies — Aaron Zebley and James L. Quarles III — appear before the committees, albeit behind closed doors. The panelists expressed the view that the deputies may prove more forthcoming than Mueller in response to questions about the management of the investigation itself. Specifically, Democrats must determine why the investigation concluded when it did, why Mueller did not take the president to court to compel an interview, and why such matters as the connections between the Trump Campaign, WikiLeaks, Cambridge Analytica and Russia are only half-addressed in Volume I of the final report. Insight into the internal discussions within the investigation could be a critical component in framing the oversight agenda going forward.

The Stakes are Real, Act Like It

Democrats owe it the American people to be well prepared when they question Mueller. The House Judiciary Committee is roughly twice the size of the House Intelligence Committee, with the result that many of the most junior members are unlikely to speak due to the time constraints. This is unfortunate as several freshmen Democrats this year have already outshone the old guard as incise questioners. Those members who do get a chance to participate should coordinate with one another to avoid repetition. They should also resist the urge to make grandstanding speeches, and, instead, keep their lines of inquiry focused. Overly ambitious questioning, particularly when exchanges are limited to five minutes, can derail the hearing’s momentum and rarely produces useful testimony.

Even if impeachment and removal remain as far off the table at the end of Mueller’s testimony as they appear to be today, Democrats must remember that they are shaping issues and narratives that will be central to the 2020 election. “A lot of our democratic norms are on the ballot,” Klain concluded. “If Trump gets four more years and continues to go down the path that he is [on], ideas like an independent Justice Department or a federal law enforcement agency that’s insulated from politics will be eroded … beyond comprehension, beyond measure.” In order other words, in 16 months we will hold a national referendum on the rule of law in the United States. In light of that fact, even if the hearings with Mueller are not the home runs some might hope for, it is important that the committees get on base.