Andrew McCabe lays out how Congress can press Mueller into nailing down Trump on obstruction of justice
Former FBI Deputy Director Andrew McCabe (Screen cap).

On Thursday's edition of CNN's "New Day," former FBI Deputy Director Andrew McCabe took anchors John Berman and Alisyn Camerota through what former special counsel Robert Mueller should be expected to tell Congress in his upcoming testimony — and how Democrats can get him to implicate President Donald Trump.

"So if you’re Congress, how do you get something from him?" asked Berman.

"What he won’t do is go beyond the four corners of the report, as he’s already said in his own statement," said McCabe. "I think one of the more frustrating parts of the report for people is he didn’t come out and address the hypothetical questions of if the president was not the president and just a private citizen, would he be charged with obstruction. So if that’s the place Congress wants to get to, there are many, many ways they can get very close to that. The report outlines at least ten different categories of obstructive activity. In 8 of those 10 categories director Mueller concluded there was significance evidence to support each of the three elements of the offense."

"Were I Congress, I would pick the two top or four areas that they think are most impactful and go through a very deliberate series of questions to get director Mueller to talk about the evidence that supports each of those elements of the crime," McCabe added.

"What if they say to him, 'Were you happy Bill Barr did his own summary weeks before the report came out?'" asked Camerota.

"I don’t know if he has to answer anything," said McCabe. "He’s a reluctant but voluntary witness. I think from his own personal style, from my own experiences with him, I think he’ll try to avoid getting down between a personal conflict. I think he’ll immediately deflect to the report itself and said I made my own statement about the report, I think the report is very clear about what we concluded and I’m happy to talk about that."

"You do note, again, there are ways Congress can ask questions here that will put the former director on the spot," said Berman. "For instance, 'does DOJ typically seek to convict subjects of obstruction with evidence like this?'"

"Right," agreed McCabe.

"If posed with that direct question, what do you think he would say?" Berman asked.

"I think he’d have to say yes," said McCabe. "He is a prosecutor by background. He brought cases, tried cases in federal court. If you walk through the evidence on one particular act of obstruction and he describes one, he says was there a nexus to a proceeding and he describes it, he says was there intent, he describes the evidence and then pose that question to him, it’s going to be very hard for him to say that in similar circumstances a person confronting that sort of evidence wouldn’t be charged with obstruction."

"Isn’t that the ball game, though?" Berman asked. "Won’t Democrats jump up and down for joy if they got director Mueller to say, yes we wouldn’t just charge but convict someone?"

"I think it’s an enormously significant point, I think it’s one the report comes very close to," said McCabe. "But it’s also one the Democrats could elicit from the director if he’s questioned effectively, and that’s a very big if."

"So if you were in Congress, what’s the one question that you would ask Robert Mueller to get a different answer or to elicit some sort of new information?" asked Camerota.

"I think that’s the key, though, Alisyn," said McCabe. "You don’t go for something different. There’s so much in the report to work on. I would pick out those three or four most offensive acts of obstruction with the most solid evidence and make sure that’s communicated in a clear and simple way to everyone watching."

"Biggest mistake Congress can make next week?" asked Berman.

"Food fight," said McCabe. "The Republicans are going to raise all kinds of objections to the questioning. They’re going to attack Director Mueller on his choice of staff and things like that. If they allow themselves to get drawn into that area, they lose."

Watch below: