The emerging consensus appears to be that the Democrats are making a serious mistake--it's a bridge too far, expecting Mueller to make a difference in public opinion and somehow stop the Barr Express that's barreling down the tracks toward the Deep State. As always, the problem with acting out of desperation is that, when you have no really good alternatives, serious blowback becomes a near certainty. In this case, the snag for Democrats is that at a Congressional hearing the minority gets to ask questions, too. You can jigger the rules to try to protect the witness or minimize the potential for damage, but there's only so much that can be done in that regard.
Sean Hannity spoke with Gregg Jarrett and Alan Dershowitz last night, and they delved into these issues. We all have our list of questions that we hope the GOPers are preparing for Mueller, some of which we've already alluded to. Hannity spoke first with Jarrett. Jarrett's wish list of questions--riffing off Hannity's list of nine questions--focused on two areas:
First, Jarrett wants Mueller to be questioned regarding the circumstances of his appointment as Special Counsel. Recall that Rod Rosenstein brought Mueller to the Oval Office to have Trump interview Mueller as a replacement for FBI Director the very day before Mueller was appointed as Special Counsel. It's very obvious that something was up. Thus, Jarrett wants the GOP to ask Mueller whether he discussed the President's reasons for firing Comey. If Mueller's answer is, Yes, then under the Special Counsel regulations Mueller was required to disqualify himself because he was a witness to the offense he was investigating. Mueller will be under oath, and there were a minimum of two other witnesses present, and likely more. That could be dicey line of questioning for Mueller.
Jarrett's other preferred line of inquiry is the Steele dossier. In particular, Jarrett wants to know how Mueller could have failed to investigate the sources for Steele's dossier that the Clinton campaign fed to the media. Steele claimed to be using Russia sources for his "information"--wasn't all that directly related to Mueller's mandate, or an obvious extension of it? Just one scope memo away, so to speak.
We'll return at some length to Jarrett's first issue. In particular, I find the question of who both Rosenstein as well as Mueller spoke to between the Comey firing on May 9, 2017 and Mueller's appointment on May 17, 2017, to be of absorbing interest. First, however, I want to turn to Alan Dershowitz's remarks, for which I've produced a partial (but largely complete) transcript. As always, Dershowitz is insightful
Dershowitz first addresses what he views as the irony in what Schiff and Nadler are undertaking with the Mueller testimony--which he views as almost certainly self defeating from a Democrat perspective. The crux of the matter lies in the fact that the Dems want to ask Mueller about matters that are in the report--collusion and obstruction--while the GOPers want to question him about matters that aren't in the report. Dershowitz explains how that works directly against the Dems:
The irony is that all the questions that the Democrats wanna ask [Mueller], he's not entitled to answer. He can't answer any questions involving the investigation of President Trump or his campaign, because that was the essence of the report. They decided there was no case for prosecution and Justice Department regulations and tradition say: That's it! You've decided not to prosecute? Don't do what Comey did! Don't talk about what might have been! Don't say that she was sloppy with her use of the emails and don't say that President Trump might've A, B, C, D, E! You've already said it.
BUT ... the irony is that the questions that the Republicans wanna ask about, all the issues that you and Gregg have mentioned, are completely appropriate, because they're not in the report! They're entitled to ask him: Why isn't it in the report? Why did you pick these people to be in the investigation? What about the FISA? What about the Steele dossier? Anything that's not in the report--he can answer. It's what's in the report that he can't answer.
[Mueller] can't say, No I won't answer that. He's under subpoena, and if the Republicans ask him that question he has to answer ... He's obligated as a lawyer and an officer of the court to answer any relevant question because he's under oath to tell the truth, the whole truth, and nothing but the truth. So I think the Democrats ... they've boxed themselves in. They're gonna get no answers that help them ...
Dershowitz then moves on to a more big picture issue, but one that gets very much to the heart of the totalitarian mindset motivating Schiff and Nadler. Basically, what kind of an America will it be when prosecutors can be hauled in front of a legislature and grilled on their decisions not to prosecute someone? The implications for the rule of law and the presumption are mind boggling. Nadler's and Schiff's concept seems to be to turn Congress into a Kangaroo Court of all purpose, supervising even the prosecution of citizens. Dershowitz is aghast at the enormity of it:
Let me tell you what else you can't do. You can't start having prosecutors going in front of Congress and explaining why they didn't prosecute the average American. If you have the average American businessman, you have an investigation and he's not prosecuted, Congress now is trying to establish a precedent whereby they can call any prosecutor and say, Oh, you didn't charge him? Why not? What about this evidence? Tell us about the other evidence! It undercuts the presumption of innocence, it undercuts the traditions of the Justice Department, and it undercuts the rule of law. Today it's the Republicans that are victims, tomorrow it's the Democrats, the day after tomorrow it's you and me! Any American can be subject to this if the Democrats establish a precedent allowing a prosecutor to testify about why he didn't charge someone with a crime.
Returning now to Gregg Jarrett's preferred line of questioning--the events leading up Mueller taking the Special Counsel gig. I've first copied in a list of questions that relate to that issue that sundance posted at CTH. Bear in mind as you scan these questions that there's a very important name that doesn't appear: Mueller's long time protege, Andrew Weissmann. Of course we all know that Weissmann was the driving force behind Team Mueller, the architect of tactics and theories of prosecution, as well as the probable author of the "Mueller" Dossier. However, Weissmann's role didn't simply begin after Mueller took him on. As we detailed in Why Andrew Weissmann? Weissmann and his close associates were briefed into the FBI's Crossfire Hurricane investigation of Trump, even meeting with Chris Steele, before the Carter Page FISA application was ever filed in October, 2016. Therefore, it's entirely reasonable to believe that Weissmann was directly involved in the discussions that led up to Mueller becoming Special Counsel. You may wish to insert Weissmann's name whenever there's a reference in the questions to unidentified persons at DoJ.
♦On May 16, 2017, were you applying to become FBI Director?
♦Why did you go to the White House?
♦When did Rod Rosenstein contact you about going to the White House?
♦When did Rod Rosenstein first contact you about becoming special counsel?
♦Did you speak to any members of the DOJ or FBI prior to going to the White House?
♦Were there conversations about a possible ‘special counsel position’ prior to May 16th, 2017?
♦Were you aware President Trump was under investigation prior to your conversation of May 16th, with President Trump?
♦Were you aware of the nature of the investigation, prior to May 16, 2017?
♦Were you aware of the possibility of being appointed ‘special counsel’?
♦Did you take any recording devices into the Oval Office meeting?
♦Did you own the cell phone you left in the Oval Office on May 16, 2017?
♦Between the afternoon Oval Office meeting and the next day announcement to the Gang-of-Eight by Rod Rosenstein and Andrew McCabe, when exactly did you agree to become special counsel?
♦How did Rod Rosenstein contact you between May 16, 2017 and early morning May 17, 2017, about becoming special counsel?
♦Did you immediately agree to become special counsel when asked?
♦How much time transpired between Rosenstein asking you to become special counsel and your acceptance of the position?
Remember--as Professor Dershowitz points out, these are all questions that the GOPers are entitled to ask. One wonders--certainly I do--whether Bill Barr asked Rod Rosenstein any questions along those lines. When asked these questions, Mueller will undoubtedly be wondering who has said what to whom, because he knows that he's not the only person who will know the true answers.
I'll conclude with a few paragraphs from a piece this morning by Patricia McCarthy, Adam Schiff's latest scheme will blow up in Democrats' faces. McCarthy isn't bashful about mentioning Weissmann:
Mueller in that last brief press conference seemed as nervous as a guilty man on trial for lying. He has done a lot of lying in his long career; he likes to win at any cost. He destroys people for sport. Is he going to be more confident in front of those two committees? Probably not. He most likely turned the entire "investigation," the corrosive attempt to frame Trump, over to the criminally corrupt Andrew Weissmann. ... See License to Lie by Sydney Powell.
But Schiff and Nadler are halfwits; dragging Mueller before them is a glorious mistake that will only further prove Trump's innocence and expose the criminality of those who set the entire "Russia collusion" hoax in motion.
Mueller's testimony is bound to be delicious, but not for the Left.
ADDENDUM: It's too early for an update, so I'll do an addendum:
Jonathan Turley, another prominent law professor and expert in matters relating to Congress and the Executive, has 20 questions for Robert Mueller. Several of them are very much along the same lines as those proposed by Gregg Jarrett and sundance, but he also wants to question Mueller on his handling of obstruction issues. Having previously suggested that obstruction might be raised by the Dems when questioning Mueller, I found Turley's suggested questions in that regard to be penetrating:
2. You met with President Trump after he fired FBI director James Comey. He has said the meeting was an interview for your possible appointment as Comey’s successor. Presumably, Comey’s firing and its basis were discussed. Did Trump explain his reasons to you?
3. Given that you were one of the first outside individuals to meet with Trump on Comey’s firing, didn’t that create a conflict for you as a fact witness in any later investigation? Did you seek an ethics opinion on that alleged conflict?
4. Deputy Attorney General Rod Rosenstein also was involved in the decision-making on Comey’s firing, including his memorandum detailing Comey’s violations. Did you seek to interview Rosenstein and, as a result, did you raise the obvious conflict of interest in Rosenstein overseeing the investigation?
10. Isn't it true that Barr and Rosenstein, your supervisors, encouraged you to reach a conclusion on both crimes related to obstruction or collusion?
11. If you were concerned about your interpretation of the OLC memos, why didn’t you follow the standard approach of requesting an opinion from the OLC during the two years of your investigation?
12. Likewise, if there was disagreement on the scope of the obstruction provisions, why didn’t you request an OLC opinion on that issue?
13. Do you believe Barr and Rosenstein violated DOJ policy in reaching a conclusion on obstruction and, if not, why didn’t you follow their requests and reach such a conclusion yourself?