Top Law and Intelligence Experts’ Views on Mueller Hearings

During a marathon of congressional testimony on Wednesday, Special Counsel Robert Mueller fielded questions from members of the House Judiciary and Intelligence Committees on his report on Russian interference in the 2016 election and President Donald Trump’s efforts to thwart the investigation. Mueller kept his answers short and, more often than not, guided lawmakers back to his report for answers to their questions. 

Democrats went into the day with the goal of bringing Mueller’s report to life. At nearly 450 pages, the report is packed full of vivid, behind-the-scenes stories from the campaign and the White House, and paints a picture of Trump campaign officials greeting overtures from the Russian government and its agents with open arms, and later, White House officials trying to deal with the President’s numerous requests to quash Mueller’s investigation. Democrats’ attempts to tell this story on Thursday often fell flat. First, the format of the hearing didn’t help, with Republicans and Democrats taking turns asking questions for five-minute intervals. Second, many of the exchanges involved Democrats reciting excerpts of the report with Mueller agreeing in one-word sentences (e.g., “yes,” “correct”) that the recitation was, indeed, an accurate statement of the report’s content. Republicans did not address the report’s findings and instead tried to build a case against Mueller and his team of investigators. Meanwhile, Mueller told the committees ahead of time that he would not be reading aloud from the report, which left committee members to read the relevant sections and then asking Mueller to confirm its findings. This created a halting, sometimes tedious effort at drawing out the report’s most damning details. In the end, Mueller was not the most effective communicator of his team’s findings.

But there were some standout moments that on their own could be devastating for the President. But given today’s polarized political climate and media environment, it could be that this set of hearings, like so many Trump scandals, do little to change anyone’s minds about the president. 

To help make sense of the day’s hearings, we turned to Just Security’s editors and contributors for their thoughts. 

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Alex Finley (@alexzfinley), Former officer of the CIA’s Directorate of Operations, where she served in West Africa and Europe: 

Mueller did a good job of simply adhering to the report and not commenting one way or the other about whether anyone’s actions troubled him. With one exception. When asked if Trump’s love for WikiLeaks was problematic, Mueller responded that “‘problematic’ is an understatement.” That comment is yet another reminder (as Asha Rangappa and John Sipher and I wrote and have reiterated many times) that “collusion” or “coordination” does not have to rise to a criminal level to be problematic, particularly when you are dealing with an intelligence operation (as we know we are). 

Mueller also reiterated the most important point: Russia interfered in our elections in sweeping and systematic fashion and will do so again. We now need to ask ourselves if we think the president is faithfully executing his duties and protecting us from foreign influence. I would argue his actions continue to be problematic (and that is an understatement).

Joshua Geltzer (@jgeltzer), Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center:

I’m struck, from a national security perspective, what a strange day it was on Capitol Hill. The origins of Robert Mueller’s work as Special Counsel were the concerns of U.S. law enforcement that a hostile foreign actor, Russia, was attempting to penetrate and influence the United States in part through its outreach to one particular presidential campaign, that of Donald Trump. Moscow’s effort was part of its far broader influence campaign that included (1) research, conducted partly on U.S. soil, about what issues divide Americans and (2) the spread of disinformation, informed by that research, on social media targeting particular segments of American society in order to influence Americans’ voting behavior. 

Thwarting such a threat to American democracy and ensuring that future campaigns are protected from it should have been a unifying mission for Congress and the American people, as well as a priority for any president who took office in its wake. Yet President Trump denied and ignored the threat, fired the FBI director investigating the nature of that threat, and led to the appointment of Mueller as special counsel–and, today, we saw a deeply partisan set of congressional hearings more focused on attacking or bolstering Mueller than on assessing how the United States is doing in addressing a major threat to our national security and, ultimately, the sanctity of our democracy. That’s a strange and unfortunate place to find ourselves almost three years after the 2016 presidential election.

Renato Mariotti (@renato_mariotti), Partner at Thompson Coburn LLP, CNN legal analyst, and member of the board of editors of Just Security. He served as a federal prosecutor in the Securities and Commodities Fraud Section of the United States Attorney’s Office for the Northern District of Illinois:

The most important development in the hearings was that Mueller more clearly stated that the reason he did not consider indicting the president was because of Justice Department policy that prohibits indictment of a sitting president and his statement that Trump could be indicted after he leaves office.

In his report, Mueller made the unusual decision not to make any conclusion, one way or another, regarding whether Trump committed a crime. Typically, prosecutors either charge someone or they fail to do so and say nothing more. 

In this case, Mueller could not indict Trump because he is a sitting president. Mueller could have concluded Trump committed crimes and said so. He did not do so because it believed it would be unfair to Trump because Trump couldn’t challenge that conclusion in court.

Mueller’s reasoning is nuanced and not easy to reduce to a soundbite. But it was motivated by a desire to be fair to Trump. What lurks in the background is that Mueller found “substantial” evidence that Trump obstructed justice and any conclusion he reached would be adverse to Trump.

Mueller’s testimony that his decision not to consider indicting Trump was due to the DOJ policy preventing him from doing so and that Trump could be indicted after he leaves office suggests that this issue will linger over Trump for years to come. Regardless of whether Congress opens an impeachment inquiry, the potential criminal liability discussed today won’t go away.

Barbara McQuade (@BarbMcQuade), Professor at the University of Michigan Law School. She served as United States Attorney for the Eastern District of Michigan and Co-Chair of the Terrorism and National Security Subcommittee of the Attorney General’s Advisory Committee from 2010-2017:

Members of the Judiciary Committee seemed too focused on Mueller’s legal opinions. Because of the DOJ policy that a sitting president cannot be charged with a crime, his analysis of federal criminal statutes is irrelevant. What matters are the facts, so that Congress can decide whether impeachment is appropriate. The facts came out, albeit in halting fashion, and Congress now has a duty to decide whether we should tolerate such behavior by a president.

You could tell Rep. Adam Schiff is a former federal prosecutor from his sharp questioning. He got Mueller to agree that Russia committed crimes to help Trump win the election, Trump built a campaign messaging strategy around the release of stolen emails and then lied about it. 

It became increasingly clear that the Trump Tower meeting failed to amount to conspiracy because of legal issues rather than factual issues. Mueller’s report expressed concerns about proving the element of willfulness, that is, knowledge that the act was against the law, and that information was a “thing of value.” Even if the facts fail to establish the elements of a statute, they can still be grounds for impeachment. 

Asha Rangappa (@AshaRangappa_) Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She previously served as a Special Agent in the New York office of the FBI, specializing in counterintelligence investigations:

In his testimony to the House Judiciary and Intelligence Committees, Mueller gave three main takeaways that concern the past, present, and future:

PAST: Mueller unequivocally confirmed for the committees and the American public the most salient and damning portions of his investigation into Russia’s attack on the United States in 2016. To wit: That Russia did indeed engage in a systematic attempt to interfere in our elections; that its overtures to provide assistance to the Trump campaign were welcome and encouraged; that the Trump campaign repeatedly lied to cover up these contacts; and that the President engaged in egregious efforts to obstruct the investigations into Russia and their links to the campaign.

PRESENT: Mueller confirmed that Russia’s efforts to thwart our democracy are ongoing. He also — in a rare departure from hewing to only what was in the report — revealed that the FBI’s counterintelligence investigation into whether individuals associated with the Trump campaign may be compromised has continued and is currently in progress.

FUTURE: Mueller emphasized that Russia will attempt to interfere again in the 2020 election and that a coordinated response is necessary. He also voluntarily added in response to questioning that any campaign which receives solicitations of assistance from foreign countries and does not report it to the FBI would be engaging in conduct which is not only unethical, but also criminal.

In short, the White House, Congress, and the American people have been duly warned.

Mimi Rocah (@Mimirocah1), Distinguished Fellow in Criminal Justice at Pace Law School and a legal analyst for MSNBC and NBC News. She served as an Assistant United States Attorney in the Southern District of New York:

What struck me most today is, first, that Robert Mueller may not make for exciting television that people long for but anyone who tries to argue after this that this was a partisan “witch hunt” is simply reciting disprovable talking points. Mueller came across as someone who is interested in protecting our country, first and foremost, and following the facts without any agenda and overwhelming fairness. 

Second, Mueller specifically said in response to questions throughout the day that certain talking points by Trump were lies (not his word): that Trump was “exonerated,” that there was “no obstruction,” that McGhan was a “liar,” that the investigation was a “witch hunt.” What became clearer is that witnesses associated with Trump, and indeed, Trump himself, lied and prevented the full truth from coming out. And though he never clearly said there was “collusion,” he recited facts that clearly are hugely problematic – for example, Trump’s praise of Wikileaks which gave “boost” to a foreign intelligence operation attacking our country. It’s also painfully clear that there is much information he either didn’t seek, or we won’t get to know, about possible foreign influence that Congress must pursue. 

Julian Sanchez (@normative), Senior fellow at Cato; previously Washington Editor for the technology news site Ars Technica

If the purpose of the hearings was to present the findings of the Mueller Report—which vanishingly few Americans have read in full—in a more compelling and digestible format, it seems unlikely to have served that function very well. Mueller had always been clear that his testimony would not go beyond the findings already presented in the written report—but given how skewed the public perception of that report has been, thanks to AG Barr and Donald Trump’s pre-publication spin, hearing those findings summarized in Mueller’s own voice would still have been a valuable exercise. Instead it fell largely to Democrats to characterize the findings, with Mueller frequently deflecting questions, providing terse answers, or simply asserting that a question had been answered in the report, without presenting his own summation of what the answer was. In the face of attacks on the integrity of his investigation, Mueller’s responses often seemed surprisingly anemic. 

Still, a few points stood out:

Several Republican representatives sought to cast doubt on Mueller’s detailed—and one would have hoped by this point uncontroversial—account of an aggressive, coordinated campaign of electoral interference by the Russian government. Rep. Jim Jordan declared that the Russians who Mueller had charged in connection with the interference campaign were people “no one’s ever heard of, no one’s ever seen,” while Rep. Tom McClintock sought to question whether the Internet Research Agency—the troll farm and disinformation factory run by an oligarch nicknamed “Putin’s chef”—had really been acting at the behest of the Kremlin.

An exchange with Rep. Hakeem Jeffries underscored the untenability of Mueller’s attempt to have it both ways on obstruction in the report: After making a detailed argument for why Trump’s conduct, on numerous occasions, had satisfied every element of the crime of obstructing justice—and indeed, going out of its way to declare him “not exonerated” on this front—Mueller had formally declined to reach any conclusion about whether Trump had indeed committed a crime, since DOJ policy would foreclose a prosecution even if the answer was affirmative.  As his response to Jeffries made clear, this amounted laying out all the steps of a syllogism, then stopping short of the final unavoidable inference.

Finally, Mueller confirmed that, while his criminal probe had concluded, a counterintelligence investigation remains underway into whether members of the Trump campaign had been compromised by Russia in a way that poses a threat to national security. This was a welcome, if underemphasized, reminder that the standard for holding positions of public power and trust ought to be significantly higher than “has not committed felonies provable beyond reasonable doubt.”

John Sipher (@John_Sipher), Co-founder of Spycraft Entertainment, Director of Client Services at CrossLead, Retired Member of the CIA’s Senior Intelligence Service:

I thought that chairmen Nadler and Schiff did an excellent job of framing the issues and helping a reluctant witness to provide key testimony. However, at the end of the day the testimony provided little new that wasn’t already clear to those paying attention. I fear it is too late to make a strong public case for impeachment. Whereas the Democrats have a series of damning facts and repulsive behaviors at their fingertips, they do not have the Fox News bullhorn that the Republicans use to their benefit. There will simply not be enough Americans who watched the testimony, read the report or read the Steele dossier. Not enough Americans understand the complicated issues, or care. As a counterpoint, the Republicans hammered so long on the issue of Benghazi that there is a significant portion of the public that can get worked up when they hear the word, even if they don’t have any real sense of what it means. Whereas Mueller testified for almost five hours, then-Secretary of State Hillary Clinton testified multiple times for much longer. 

I think the Democrats did a decent job of trying to show how the Mueller report was a limited presentation of the findings of a criminal investigation, and that there is much in the report that points to indecent, disloyal and unpatriotic behavior above and beyond the bar for criminal prosecution. As a former public servant, I would have been fired for almost any of the things that the investigation turned up. People lose their clearances and jobs every day for behavior that is not necessarily criminal. For example, the notion that Trump campaign chairman Paul Manafort would believe that he could avoid paying Oleg Deripaska $18 million by providing a briefing on the campaign hints at the value of what the Trump campaign was providing Russian bad actors. However, as bad as it appears to me, and those people who regularly read Just Security, I’m not confident that the damning nature of the behavior is clear enough to most voters. 

As we saw with the recent HBO series “Chernobyl,” a new, dramatic way of looking at an issue can bring a new audience. The series provided no new information but garnered a massive following. The event itself arguably changed our lives forever but most people still didn’t bother to learn about it. However, a powerful dramatization has led to more visitors to Chernobyl over the past couple months than in the previous decades combined. I think the Democrats were hoping the hearing would be their “Chernobyl” moment but I don’t think they were successful. 

Joyce White Vance (@JoyceWhiteVance), Distinguished Professor of the Practice of Law at The University of Alabama and MSNBC commentator. She served as the U.S. Attorney for the Northern District of Alabama:

Something that gets lost in the partisan argument over the president is that Russia undeniably attacked our elections and will undoubtedly do it again. Mueller emphasized this every chance he got, although there was little questioning about it. One moment came today with Texas Republican Will Hurd, who asked if Mueller thought Russia’s 2016 attack was a one-time only effort. Mueller responded that it wasn’t a single attempt and said “They’re doing it as we sit here.” He said he expected Russia to attempt to attack the 2020 election. It’s clear Mueller believes that Congress’ most important mission going forward is to protect our elections. When asked what could be done, he encouraged Congress to pursue legislation designed to push all of the agencies with responsibility in this area to work together. This could, and clearly should, form a roadmap for the parties to work together for the good of the country in the coming months.

Photo by SAUL LOEB/AFP/Getty Images

 

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