Since DOJ’s letter to Robert Mueller got released last night, many on the left have fumed that this is part of a nefarious effort by Bill Barr to silence Mueller.
And while I don’t doubt that Barr will do anything he can to limit the damage of Mueller’s testimony to his client, Donald Trump (indeed, there were reports that he met with HJC Ranking Member Doug Collins yesterday), this letter was orchestrated by Mueller, not Barr.
As the letter notes, Mueller wrote to DOJ on July 10. By that point, it was already crystal clear what kind of guidance DOJ would offer if asked. So he had to have known he’d get the letter he did. And yet he asked for instructions, when nothing obligated him to do so.
Moreover, this letter was released by his spox, not by DOJ. Effectively, then, this is Mueller setting — re-setting, repeating what he said in his press conference on May 29 — expectations. That doesn’t mean people can’t ask Mueller questions beyond his report (I would argue that matters about the release of the report are not covered in DOJ’s letter). But he now has the ability to blame DOJ for not answering.
That said, it’s likely that this actually limits GOP plans for the hearing more than Democrats. That’s true, in part, because Democrats have already been planning really milquetoast questions, assuming that having Mueller read directly from his report will be sufficient to generate new outrage over Trump’s actions. But it’s also true because most of the things Republicans want to emphasize — the role of Peter Strzok and Lisa Page, the Steele dossier, the FBI’s use of informants, Carter Page’s FISA application — are mostly outside the scope of the report. About half the questions Chuck Ross suggested, for example, would be outside the scope of the report (while I situated my questions more closely in existing public documents, probably half of mine would be deemed to go beyond the report as well).
If the Republicans want to talk about the Steele dossier, Mueller will guide them to either Jim Comey’s briefing about the dossier on January 6, 2017, or the pee tape — the only allegation in the dossier that made the unredacted parts of the report. And if Republicans choose that option, it’ll mean Mueller will explain over and over that Trump’s fixer, Michael Cohen, was taking steps to chase down the pee tape well before the dossier was made public. (Hope Hicks was also trying to chase down the pee tape, but that didn’t make the report.) It’s not going to help Trump’s case to show that his campaign took the pee tape seriously, along with all the other sex scandals that threatened to erupt right before the election in 2016.
Likewise, if Republicans want to talk about “FISA abuse,” the former FBI Director will either direct them to the three places in the report where Trump included Jeff Sessions’ inaction on FISA among the reasons he wanted to fire him to thwart the investigation, or (more likely) he’ll point to the standard to obtain a FISA warrant.
On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801 (b ), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) ( explaining that probable cause requires only “a fair probability,” and not “certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence”).
And he can then point to all the details in the report, such as Page’s willingness to share non-public information with known Russian intelligence officers, and his claims that he represented the interests of Donald Trump in December 2016, including on negotiating a Ukraine deal.
I’m not happy that Mueller is walking into this hearing setting expectations as low as he can. Though I was sympathetic to his offer to testify in closed session, as I’m fairly certain Congress would get more useful answers with less conspiracy theorizing.
But it’s worth noting that these instructions will serve as a tool to shut down Republican grandstanding even more than it will shut down Democrats.