Former Special Counsel Robert Mueller is sending a very clear message: He doesn’t want to testify.
That’s the not-so-subtle subtext of the announcement that Mueller plans to submit the 448-page report detailing the findings of the Russia investigation as a statement for the record during his hearing before the House scheduled for Wednesday. Of course, Congress already has the report, so the move isn’t necessary. It’s Mueller’s way of saying, as he has previously, “The report is my testimony.”
In other words: Leave me alone.
But the Democratic chairs for the House Judiciary Committee and Intelligence Committee have subpoenaed Mueller to testify, and he will comply. He just won’t be happy about it.
What will he actually say? “The report is my testimony” phrasing actually leaves open two possibilities. First, it could just mean that, with respect to any of the questions explored or addressed in his report, he will simply recite the answers provided (or omitted) by the report. But there’s a second, potentially more sweeping interpretation, which is that he literally won’t answer any questions from Congress aside from providing information already detailed in the report.
Jim Popkin, a private spokesperson for Mueller, didn’t provide much help in deciding between these two interpretations in a statement to the Washington Post. He simply said: “As [Mueller] made pretty clear then, you can expect him to stick pretty close to the four walls of the report come Wednesday.”
It is legally untenable for Mueller to deny that he has to answer any questions with answers that fall outside the report (even though the Justice Department has asked him to do just that). But he may be betting that there’s almost no conceivable circumstance in which Congress will rule him in contempt, so he can get away with being more taciturn than the lawfully ordered subpoena should allow.
There are, certainly, some questions that no lawmakers should expect an answer to from Mueller. For example, if you ask if he would have indicted Donald Trump were he no longer the president, Mueller will obviously refuse to answer. If he thought it were appropriate and reasonable to answer that question, he would have put it in the report; when he says he won’t go beyond the report, this is clearly one of the central messages he’s sending.
However, Democrats might reasonably ask whether Mueller believes Attorney General Bill Barr faithfully represented his report and findings in public before the report became widely available. They might want to know what Mueller thinks of Barr’s decision to reach the conclusion that Trump didn’t obstruct justice, which seems to contradict the evidence in the report. The answers to these questions aren’t in the report, and they could not have possibly been in the report — but they are clearly in the public interest. So Mueller’s “The report is my testimony” response would make little sense.
Republicans, too, will have questions — perhaps exclusively — that fall entirely outside of the report. The GOP has been obsessed with allegations of bias on the part of Mueller and his team. While some of these allegations are addressed in the report and Mueller may use it to respond to such questions, many are not. For example, the right wing has been excessively concerned about former FBI employees Lisa Page and Peter Strzok’s involvement in the investigation following the release of emails revealing their strong dislike of Trump. Republicans have also criticized the politics of the lawyers who joined Mueller’s team. Like the questions about Barr, these questions fall outside the report’s scope, but they still seem like perfectly legitimate topics for lawmakers to ask about. If Mueller says, “The report is my testimony,” this response will be inadequate.
So there’s ample room for questions that fall outside the report — on both sides of the aisle — that are perfectly legitimate and that Mueller may or may not answer. What happens if he decides to steadfastly refuse to answer any such questions?
The result would likely be a messaging blow to Democrats while a rallying cry for Republicans. Because Mueller has dug up dirt on Trump and his allies, he’s seen as an opponent of the president. Any reticence he has to further criticize Trump or the administration will be seen as a refusal to play into the Democrats’ narrative, thus counting against it.
But if Mueller refuses to offer any substantial response to Republicans’ questions and allegations about Strzok, Page, and the supposedly anti-Trump team he assembled, or about the allegedly nefarious origins of the Russia investigation, then his silence will just fuel the fires of conspiracy. Mueller’s refusal to answer these questions will just prove, to his detractors, how corrupt he was all along.
By staying mum, Mueller will be playing right into Republican hands.
This asymmetry is one reason to hope Mueller is more forthcoming than he appears inclined to be on Wednesday. But there’s another reason, too: Americans deserves answers. They deserve answers if they want to know exactly how Barr’s influence over the investigation affected its conclusion, and they deserve answers if they want to know more about the criticisms of Mueller stirred up by right-wing media. Mueller did an important job for the country, and he made critical decisions that impacted how that job was carried out. He owes it to the American people to tell not only the truth but the whole truth about how those decisions were made — at least to the extent permissible by law.