Thursday, June 27, 2019

Mueller Before Congress: The Emerging Consensus

I've already presented my view that the Robert Mueller testimony scheduled for July 17 was a strategic decision born of desperation. That desperation is a product of the Deep State's realization that AG Barr and John Durham are seriously focusing on the ICA "assessment"--the core of the continuing Russia Hoax narrative of "collusion"--and the origins of the Steele "dossier." Steele and all involved CIA and FBI officials will be questioned, up to and including Gina Haspel, CIA Director. Thus, with the Deep State under prosecutorial pressure, Schiff and Nadler, desperate to protect the Deep State and somehow keep the "collusion" narrative alive, had nowhere else to turn but to try to showcase Mueller for a bit of impeachment theater. Or maybe impeachment cabaret, or standup.

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?


  1. I wonder if Mueller is oblivious to the criticism and contempt that are directed toward him and his staff by much of the population.

    Perhaps he imagines that he is universally admired as a wise old man of our society. After all, that is why he was selected to be the Special Counsel. His fairness and judgement are above reproach.

    I think it's still likely that this hearing never will happen. Someone will get to him and warn him about the questions that will be asked.


    I hope that the Republicans begin their questions with a focus on whether he and/or Rosentein secretly recorded their conversation with President Trump. Why was Mueller's cell phone left in the room?

    When ambushed with such questions, Mueller will not know for sure what Rosenstein has reported secretly already -- and might testify in the future -- about that meeting.

    1. I suspect that by now Mueller believes his press clippings. A legend in his own mind.

    2. Mike took the words out of my mouth. I expect this testimony to be cancelled. Either that, or the Dems et al are dumber than I expected. Or they're not dumb but they are used to Reps acting as though they don't have spines. Especially Rep presidents.

      Oh, I hope Bobby Boy testifies. If he does, it will be one for the ages. As I said yesterday, he needs to be on his A game. Not that I want him to be.

    3. I think you can see why Barr is perfectly content to let this go forward.

  2. President Trump's public remarks about his meeting with Rosenstein and Mueller on May 16, 2017, indicate to me that Trump always has perceived that Rosenstein brought Mueller to discuss whether Trump might nominate Mueller to serve again as FBI Director.

    It's my understanding that Trump rejected Rosenstein's proposal within 24 hours -- perhaps immediately during the meeting -- and then Rosenstein surprised Trump by appointing Mueller to be a Special Counsel already during the following day.

    If that is what happened, then I wonder why Trump rejected Rosenstein's proposal so quickly.

    Yes, Mueller already had served as FBI Director longer than the normal rule allowed, but nominating Mueller to serve longer still was plausible.

    I wonder if Trump already disliked Mueller for some reason that is unknown to the public. I wonder also if Trump quickly consulted someone else who immediately convinced Trump not to nominate Mueller.

    Yet another possibility is that Trump already was well informed about the plot against him -- in particular, about Rosenstein's role in the plot.


    Rudy Giuliani might have been a key person in this situation. Perhaps he was an intermediary between Trump and a Justice Department official who knew about the plot and decided to inform Trump through Giuliani.

    I am just speculating here. However, keep in mind that Giuliani was informed secretly about the the problems with Antony Weiner's laptop.


    From Rosenstein's perspective, he might have deemed it plausible that Trump might go along with his proposal to nominate Mueller to serve again as FBI Director. That development would have been much less consequential to Rosenstein himself than appointing Mueller to be a Special Counsel.

    As FBI Director, Mueller could have acted much more effectively and much longer against Trump.


    Was anyone else in the room during that meeting of Trump, Rosenstein and Mueller? For example, was Giuliani present?

    1. That all seems plausible enough to me. Re the last point, I have to assume that Trump would have had someone else--maybe several someones--present. He'd be a fool not to, and by that point he knew the Deep State was still out after him.

  3. I am like Mike above- I think it very likely this public hearing will be cancelled, the excuse being that the closed hearings will "be sufficient". However, as CTH has pointed out this afternoon, the closed hearing with Mueller's staff isn't going to be transcribed. This allows massive leaks of questionable veracity. If I were the Republicans, I would hire a couple of stenographers adept at shorthand and bring them to the hearings to produce a transcript.

    1. Right. But the closed hearings aren't classified, so anyone can leak. Which of course begs the question, if they're not classified why are they closed? I suspect the answer is that the questions for Weissmann--whose testimony will only be in the closed session--is where the real fireworks will occur.

  4. Given that Dershowitz is correct characterizing the questions both sides prefer to ask--the Mueller can't answer Dems' questions--what happens when Mueller does answer them?

    Given the brazenness of Mueller's probe, Steele's dossier, the DNC/Clinton payment to FusionGPS through a cut-out, the FBI running informants at Trump campaign personnel, the involvement of foreign intel services, abuse of the FISA process--why wouldn't Mueller break protocol and talk about what is verboten? Who is going to stop him?

    There doesn't appear to be any bar or limit these folks won't exceed.

    I'm operating on the assumption that impeachment theatre and Mueller's performance is the purpose of the hearing, and that behind the scene preparations will attempt to orchestrate certain story lines to fill out the Dem narrative. While the idea of the hearing may reek of desperation, presumably the players, scripts, and roles will be organized.

    1. While I agree that this appears to be what's going on, here's the thing for me: I don't see that the Dem narrative has actually evolved or become more sophisticated over time, as revelations have mounted. I think that explains the public's overall lack of interest and desire to "move on." I also think that penny ante stuff has already been discounted--Dems need something new and important and big, and it just isn't there.

    2. -->Dems need something new and important and big, and it just isn't there.

      That's the desperation that the Dems are acting upon, and why I think there's a good chance that Mueller goes where he not supposed to go. The Dems will give him cover. And DNC-MSM will be all over it. Such niceties as DOJ protocol won't matter.

      I'm not saying that does the trick for "something new and important and big." Just that they're will to go there in their desperation.

      Dersh expressed concern for legislators calling prosecutors to account for non-prosecutions--I don't see anything stopping Dems from doing exactly what he fears most. I hope I'm wrong, but see little evidence to be hopeful I am.

    3. For decades now the Dems have been getting relentlessly more irresponsible and destructive of civic and constitutional order. For them law is nothing but power.

      Many years ago when I was in law school legal positivism was already morphing into game theory and then simple Marxist theories of power. Today it's well out of the classroom and standard practice.

    4. Forbes, Mueller is stuck with the report- he can't deviate from that without discrediting himself, and he can't add to it either for the same reason.

      I think Dershowitz is completely correct- Mueller's answers won't be new material, and he can't add any new material either. His most common answer to the Democrats is going to be, "Read my report." He isn't even going to venture any answer that can be proven not true or a mistake.

    5. Yancey--I hope you're right. I'm just not as confident that "he can't deviate" holds up. Perhaps I'm too cynical--let's hope I am. Cheers.

  5. The essential danger in Mueller testifying before Congress is not that it might do harm to Democrats, or harm to Mueller himself, or even harm to the credibility of the SC investigation and report. The real risk is that, as a result of hard questioning by Republicans, Mueller will be forced into exposing the attempted coup and it's associated sedition and criminality by (at least) the DOJ/FBI. This single act, occurring in a widely watched public forum, could do immeasurable harm to integrity, reputation, and viability of these seminal law enforcement institutions. If you really want to take out Barr/Durham, what better means than taking down the institution itself and destroy it's credibility in advance of any future actions against the Deep State that might come later? This is the doomsday Armageddon gambit and it will definitely turn over the game table and set up the Democrats to argue that any future prosecution of the Deep State is suspect as a political revenge action. This is why time is not on Barr's side. The Democrats know they will lose a legal war with Barr, so they will have no restraint in going nuclear.

    1. See my response to the issues Forbes raises. To "go nuclear" you need an actual bomb--bluffing won't work. Barr has long since called the Dem's bluff and they simply don't have the nuke.

    2. -->could do immeasurable harm to integrity, reputation, and viability of these seminal law enforcement institutions.

      Yeah, that ship sailed already. Some of the public may not see it that way yet, but Barr's job is to renovate and rebuild. If it's not just a new top floor, but the structure has to be gutted--so be it.

    3. The Dems are playing a weak hand. Boy, if I were a Rep strategist... I'd make TV ads and I'd replay Obama's warning for parents not to take children to the border; Eric Trump being spit upon; walls to protect Dems' houses are okay, but not for our border; the gay Dem rep saying "shame on you" to an older woman for eight minutes. The list goes on.

      What does the Oberlin verdict say about our society? Maybe that the American People have had enough? That's my take.

      Donald Trump seems pretty confident and he is proving to be a one-man political strategist.

      To quote Bluto from Animal House, "Mueller, dead man, Comey, dead man, Strozk, dead man, Weissmann, dead man. It's not over until we decide it's over. Who's with me!?"

    4. Just look at the Dem debates. Madness.

    5. What Unknown is saying is that the Deep State is fully prepared to burn the Augean Stables to the ground around Hercules's ears rather than see them mucked out. They don't want the porch swept, much less anything "renovated".

      I am not a lawyer but many here are. My concern is not that this or that rule might be bent. None of these players are in the game for a cushy pension and twilight years fly-fishing. This is about Power. As raw/visceral as it comes. I see this committee testimony as a pure propaganda ploy. Double down on the lie and jack up the volume. Mueller may well go completely rogue and accuse Trump, Manafort, Flynn, of the Reichstag fire, and rules be damned. If the MSM can pump the volume up enough it might throw 2020 into doubt. If Trump is out, for whatever reason, then all is good (no Trump, no Barr), everything disappears.

      Just spit balling but learned the hard way many years ago to never underestimate the desperate's capacity for chaos (and kinda made a career breaking "rules", after all they're more like just guidelines).

    6. The problem with that scenario, as I see it, is that so much of this stuff is documented. That's the thing about any bureaucracy. One way or another it goes on paper or into digital form. My view is that they've pretty much taken their best shot at Trump already. They're playing defense now.

  6. More potential trouble for Dems, media and social media. According to Sean Hannity, Google's plan to rig searches, YouTube, etc., could be seen as an in-kind donation to Dem candidates.

    This could be big.

    1. Very interesting. Didn't the Dems try to make some similar kind of charge against Trump, re in kind donations?

  7. In a perfect world, Barr/Durham will complete the investigation(s) and come forth with indictments if warranted, most likely all at once if history is any guide on such matters. And given the expansiveness and severity of the criminality that occurred under Obama (which by the way include a little thing known as sedition/attempted coup against a duly elected president), this represents an enormous undertaking and doing it right could take years to implement in the normal course of events.

    Now step across the line for a moment and imagine that you are the Grand Pooba of the Deep State. What do you do in this situation where Trump has gained the upper hand with Barr and the future looks grim? Answer . . . you delay Barr as much as possible and then do everything and anything necessary to elect a Democrat in 2020 followed by firing Barr and burying the investigations. And "everything and anything" is not a trivial matter. A lot of ever-escalating damage might occur over the next 1.5 years.

    1. Have you checked out the Dem candidates recently? Via NeverTrumper Rod Dreher:

      Ur-#NeverTrumper David Brooks is dazed by how far left the Democrats are going:

      The party is moving toward all sorts of positions that drive away moderates and make it more likely the nominee will be unelectable. And it’s doing it without too much dissent.

      First, there is health care. When Warren and Kamala Harris raised their hands and said that they would eliminate employer-based health insurance, they made the most important gesture of the campaign so far. Over 70 percent of Americans with insurance through their employers are satisfied with their health plan. Warren, Harris and Sanders would take that away.

      According to a Hill-HarrisX survey, only 13 percent of Americans say they would prefer a health insurance system with no private plans. Warren and Sanders pin themselves, and perhaps the Democratic Party, to a 13 percent policy idea. Trump is smiling.


      Third, Democrats are wandering into dangerous territory on immigration. ... Progressive parties all over the world are getting decimated because they have fallen into this pattern.

      Yep. Seems to me like the big winner from these first two nights of Democratic presidential debates is … Donald Trump.

    2. "Answer . . . you delay Barr as much as possible and then do everything and anything necessary to elect a Democrat in 2020 followed by firing Barr and burying the investigations."

      But, wouldn't that be 'obstruction of justice?'

      I'm serious.

    3. A determined AG has the tools to kick ass. Period. Delay tactics from the bureaucracy won't stop or delay him for long, especially with presidential backing.

  8. Another thought came to me: What if Mueller met an untimely end at the hands of an AR-15 (accessories sold separately) totin', intersectionaly confused, NRA member when he stops by his local bakery to pick-up a Polyamorous Besties cake celebrating his, Rosenstein's, Brennan's and Comey's co-habitation arrangements at Leavenworth.

    A martyr making and legend birthing Black Swan (not to mention permanently shutting up a potential embarrassment).

    If I were Mueller, since this involves the Clintons and Obamas, I would be more terrified of my friends than my enemies. Who knows, maybe he is.

    1. Do you remember the Dem/Prog/Woke reaction when his Dossier came out? Those were his "friends."