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Democrats Still Can't Decide on Subpoenaing Robert Mueller

“If Congress asked him to testify, I believe he would appear voluntarily,” Rep. André Carson told VICE News

by Greg Walters
Jun 5 2019, 5:05pm

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WASHINGTON — House Democrats are gearing up to hold a series of public hearings aimed at picking up where Special Counsel Robert Mueller left off, namely President Trump’s potential obstruction of justice.

They may have to do so without their star witness: Mueller himself.

In fact, Mueller, has made his position clear: all the answers are in his report already on Congress’s desks. Democrats, on the other hand, want the camera-shy special counsel front and center in an effort to breathe new life into their probes of the president.

“We will have Mr. Mueller’s testimony,” said Rep. Jerrold Nadler Friday. Mueller’s appearance is vital, he said, because “most people are not going to read the 448-page report.”

But the special counsel's reluctance has put the Democrats in a tough position between moving forward without him in an investigation they see as having utmost importance, or dragging an unhappy Mueller into Congress against his wishes.

Still, Democrats may be willing to go for that second option.

“I certainly support issuing a subpoena if Mr. Mueller does not agree to appear voluntarily,” said Rep. David Cicilline, a Democrat from Rhode Island on the House Judiciary Committee.

The power of the spoken word

Many Democrats think the reward of simply having Mueller speak to the public again outweighs any of the associated risks. It comes down to reading vs watching — even if Mueller just repeats what’s in his report.

They’ve got some reason for this: Mueller’s first and only public appearance during his two-year investigation appeared to break through in a way that his writings didn’t — at least in Congress.

The episode gave fresh energy to Democratic calls to open impeachment proceedings against Trump, even though Mueller spoke for less than 10 minutes and said almost nothing new.

“It was the difference between reading the book, and watching the movie adaptation,” said Paul Rosenzweig, a member of Ken Starr’s investigation into former president Bill Clinton. “The audio of Mueller saying that he couldn’t exonerate the president will resonate for years, in a way that the same written statement simply won’t.”

Polls suggest the report didn’t really change minds. About 80 percent of Democrats thought Trump obstructed justice both before and after it dropped, while 77 percent of Republicans continued to think he didn’t, as before.

The public’s understanding of Mueller’s findings remains limited in large part thanks to Attorney General William Barr’s early mischaracterizations of the investigators’ conclusions, according to Richard Arenberg, who spent 34 years as a Capitol Hill staffer.

Mueller’s findings are far more damning than Barr suggested, and much worse than many Americans realize, Arenberg said.

“I don’t think the public understanding of the Mueller report ever recovered from Barr rolling out his summary, and then leaving it unchallenged for over a month,” Arenberg said.

The report presents evidence enough to indict Trump for the crime of obstruction of justice, according to a public letter signed by over 1,000 former prosecutors, who contradicted Barr’s decision to clear Trump of the crime.

In fact, Mueller said he was forbidden from indicting Trump by Justice Department policy, and reasoned it would therefore be unfair to accuse Trump of criminal activity without the chance to clear his name in court.

Mueller’s brief public remarks last week helped tip more Democrats into the impeachment camp — such as Rep. Jesús García, Democrat from Illinois. Hours after Mueller spoke, he released a statement: “After careful deliberation, I have concluded that the House of Representatives must begin a formal impeachment inquiry.”

Other influential House Democrats also took Mueller’s words as a call to action, including the chairman of the House Rules Committee Rep. Jim McGovern of Massachusetts, and House Homeland Security Committee chairman Rep. Bennie Thompson of Mississippi.

Now, almost 60 House Democrats support opening an impeachment inquiry of President Trump, according to a New York Times survey.

“Mueller made it crystal clear when he spoke to the nation last month: contrary to the assertions of Attorney General Barr, the special counsel did not exonerate the president from obstruction of justice,” said Rep. Pramila Jayapal, a Democratic member of the House Judiciary Committee. “We in Congress and on the Judiciary Committee must continue the essential work of oversight through hearings and enforcing subpoenas to get critical testimony from key witnesses, including Special Counsel Mueller himself.”

“If he looks like a reluctant witness, that’s probably not going to have the effect they want”

But Mueller also signaled he has no desire for an encore performance, or to say anything beyond what he’s written.

“The report is my testimony,” Mueller said. “I would not provide information beyond that which is already public in any appearance before Congress.”

Forcing Mueller to show up involuntarily could make him even less inclined to deliver the performance Democrats are looking for, said Mike Stern, who was senior counsel to the House of Representatives from 1996 to 2004.

“If he looks like a reluctant witness, that’s probably not going to have the effect they want,” Stern said.

Mueller wants any testimony to take place in private because he doesn’t want to look political, Nadler told MSNBC’s Rachel Maddow in an interview in May.

Some Democrats remain hopeful they’ll be able to persuade Mueller to show up on his own, and talks are underway to persuade him.

“The Judiciary Committee is currently taking the first and necessary step of continuing to negotiate with the former Special Counsel for his testimony before considering any other course of action,” Rep. Zoe Lofgren, a member of the House Judiciary Committee from California, told VICE News.

“If Congress asked him to testify, I believe he would appear voluntarily”

Rep. André Carson, a Democrat from Indiana, said he thinks Mueller will ultimately agree to appear without any need for a subpoena.

“If Congress asked him to testify, I believe he would appear voluntarily,” Carson told VICE News. “He understands that it’s important to cooperate with Congress — since our aim is greater accountability and transparency. I think he shares these priorities and wouldn’t ignore our requests.”

Without Mueller, the House may have few options for other good witnesses, thanks to a White House blockade on former officials responding to Congressional subpoenas. Trump has already blocked key witnesses like the former top White House lawyer Don McGahn from showing up.

If that trend continues with Mueller Democrats may be left scraping the barrel to find outside witnesses, such as John Dean, the Watergate-era White House Counsel who has pretty much nothing to do with Trump but has nevertheless been booked to appear at the opening Congressional hearing this Monday.

But Mueller, unlike other key witnesses, would comply with a congressional subpoena, Arenberg said.

“I think Mueller would have the obligation to answer a request from Congress,” Arenberg said. “If they have to issue a congressional subpoena, so be it.”

Cover: Special counsel Robert Mueller walks from the podium after speaking at the Department of Justice Wednesday, May 29, 2019, in Washington, about the Russia investigation. (AP Photo/Carolyn Kaster)