In a new letter to Robert Mueller sent Tuesday night, House Intelligence Committee Chair Adam Schiff (D-CA) lampooned the Justice Department’s attempt to circumscribe the special counsel’s upcoming testimony.
The DOJ has directed Mueller to not answer any questions that touch on information outside of the special counsel’s report on the Russia investigation. During his final and only press conference as special counsel, Mueller has suggested any testimony he would give wouldn’t stray beyond the information contained in the report, saying: “The report is my testimony.”
But in his letter on Tuesday, Schiff rejected the department’s alleged justifications for restricting Mueller’s testimony, saying they are “not binding” and should have “no bearing” the hearing.
Schiff noted that the committee will respect his silence if needed to “protect legitimate Department equities and not to interfere with ongoing prosecutions.” But Mueller cannot legitimately refuse to answer questions about, for example, the uncharged conduct of President Donald Trump, in part because Attorney General Bill Barr has already extensively commented on the president’s conduct while acting in his defense.
“The Department cannot expect you, or others, to abide by Department policies when the Attorney General himself does not follow them,” Schiff wrote.
He then argued that each of the grounds the DOJ tried to use to justify restricting Mueller’s testimony was baseless:
In any event, each of the variants of executive privilege cited in the DOJ Letter are inapplicable here. First, therc is no basis to support the proposition that a law enforcement privilege—particularly one applied to the now-closed Special Counsel’s investigation, which referred consideration of the evidence uncovered to Congress for scrutiny of the President’s actions—can shield from congressional scrutiny information that is necessary to address Congress’s independent constitutional functions and oversight concerns. Second, the deliberative process and work product privileges are common-law privileges that cannot shield testimony pursuant to a constitutionally-rooted congressional subpoena. Finally, the presidential communications privilege is designed only to protect the decision-making process involving the President’s closest White house advisors and, therefore, has no bearing on your testimony as a private citizen and former special counsel.
The California lawmaker also said that, despite Mueller’s professed inclination to limit his testimony, “the subpoena issued by the Committee placed no such limitations on the scope of your testimony, nor did the Committee agree to any such limitations during our weeks of negotiations about the terms of your appearances before the Committee.”