Dear Dems: Make Mueller’s Testimony About 2020, Not 2016

Congressional Democrats are champing at the bit to have Robert Mueller recite, on live television, the past indiscretions of Donald Trump that Mueller documented at length in his written report. But focusing on the past would be a big mistake; and Democrats should make the 2020 election, not the 2016 election, the emphasis of their questions to Mueller and thus of his testimony.

Many Democrats feel the Mueller report didn’t have the impact on the public’s view of Trump they were hoping for. After all, the report was a dense, multi-hundred page document, at times packed with legal jargon and detailed factual recitation. So what’s needed (the thinking goes) is better storytelling, with Mueller talking on camera about what he uncovered—especially the extensive connections during the 2016 campaign between Trump’s team and the Russians, and the 10 incidents of apparent obstruction of justice Trump committed to thwart investigation of those Russian links. Hence the House Judiciary Committee chair’s insistence that Mueller must testify “to a television audience” and, most recently, his Democratic colleague’s excitement for when Mueller describes the events he uncovered and “brings them to life.”

That thinking badly misgauges Mueller and sets up the Democrats for embarrassment next week. Mueller could not have been clearer at his May press conference: “The report is my testimony,” Mueller said, adding, “I would not provide information beyond that which is already public in any appearance before Congress.” What’s more, Mueller is an experienced prosecutor who’s surely instructed hundreds of witnesses over decades not to be lured into offering a second account of anything that might diverge—even slightly—from an account already provided, thus undermining the witness’ credibility. If Democrats press Mueller to recite the Trump team’s 2016 indiscretions and obstructive behavior since, they may find themselves facing a reluctant, even hostile witness—perhaps one who literally reads aloud from the same dry prose of his written report that’s already public. Democrats may think that Mueller reading from his own report will be compelling and perhaps shift public perception of Trump and even the impeachment question. If they do, they need to re-read the report themselves.

Democrats are better off focusing on 2020, and in particular two sets of questions that remain unaddressed by Mueller’s written report—and remain urgently important.

First is the counterintelligence threat that Donald Trump represents. Mueller’s work continued a counterintelligence investigation he inherited, and his written report addresses one aspect of that investigation: possible criminal activity. But his report also notes his awareness from the outset that his “investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission,” and further indicates that Mueller in fact uncovered such “information derived from the investigation, not all of which is contained in this Volume.”

Think about this aspect of Mueller’s work as addressing the crucial question of whether Trump represents a stooge of the Kremlin now occupying the Oval Office and advancing Russian interests—whether wittingly or unwittingly.

The House Intelligence Committee Chair recently indicated that—astonishingly—he hadn’t been briefed in a year and a half on this serious counterintelligence threat to American national security. Democrats should press Mueller for everything he can share in an unclassified setting about this vital but under-explored angle of his work. This line of questioning would begin by exploring how Mueller sees that threat and extends to whether he believes the Justice Department and FBI have, especially in the face of pressure from Trump himself, taken it seriously by continuing to investigate and analyze it.

This questioning would also reach the likely nature of Vladimir Putin’s apparent influence on Trump and how that might be contributing to otherwise puzzling aspects of U.S. foreign policy, such as Trump ignoring and at times outright denying Russian aggression, Trump taking Putin’s word over his own intelligence officials’ assessments, and Trump abruptly announcing U.S. withdrawal from Syria to the detriment of U.S. counterterrorism efforts and to the benefit of Russian influence there.

Moreover, this angle of questioning would cover what more detailed questions Congress should be asking in classified settings to understand what’s been uncovered by Mueller and by others with whom he worked.

The second set of questions revolves around the threat to America’s 2020 election. Mueller’s investigation and assessment of a wide range of election-related issues surely yielded for him a detailed sense of the gaps in U.S. law and policy that were exploited by the Russians in 2016 and that remain ripe for exploitation by Moscow—and other hostile foreign actors—in the run-up to 2020. What’s more, Mueller’s multiyear investigation must have produced key insights into how that threat to American democracy is evolving. None of that—no assessment of legislative gaps, no proposals for new legislation, no analysis of the maturing threat—made it into Mueller’s written report.

Mueller won’t be able to provide all of the answers to these complex, multifaceted questions; but America desperately needs his distinctive insights into them, grounded in his extensive investigation, so we can protect our elections in 2020 and beyond. We need, for example, to understand the most effective ways to ensure that the Internet doesn’t remain an exception from the disclosure regime that currently applies to political advertising on other media like television and radio. We need to understand how to ensure that campaigns report the types of outreach from foreign powers that the Trump team received—and welcomed, but did not report—in the 2016 campaign. And we need to understand how to ensure that the government is both learning from and sharing with technology companies on which disinformation spreads the latest trends, trajectories, and tactics of actors like Moscow so that government and the tech sector can collaborate more effectively to halt that spread before it infects Americans’ political dialogue.

The temptation for congressional Democrats next week will be strong to try to elicit from Mueller soundbites about Trump’s past indiscretions. They’ll be far better off if they instead—or, at a minimum, additionally—focus on Trump’s present threat and America’s future elections. So will our country as it looks to defend itself from counterintelligence concerns in the here and now, and a presidential election that’s almost upon us.

Image: US Representative Jerrold Nadler (D-NY), Chairman of the House Judiciary Committee, and US Representative Adam Schiff (D-CA). Photo by SAUL LOEB/AFP/Getty Images

 

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About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security. Follow him on Twitter (@jgeltzer).