Special counsel Robert Mueller was expected to step down days after concluding his investigation in March. Yet he remains a Justice Department employee – and the department won’t say why.
That’s just one of the complications at play in the high-stakes, secret negotiations over whether Mueller will testify before Congress.
Whatever role Mueller now has, keeping him on the Justice Department payroll offers one clear advantage to President Donald Trump’s administration: It makes it easier for Attorney General William Barr to block Mueller from testifying before Congress.
Democrats, who control the House, have been eager to hear from Mueller. They hope he can shine more light on his investigation into interference in the 2016 presidential election, possible coordination between Russia and the Trump campaign, and potential obstruction of justice.
Barr has said repeatedly he doesn’t object to Mueller testifying. But he may defer to the wishes of Trump, who tweeted last weekend: “Bob Mueller should not testify. No redos for the Dems!”
After Barr skipped out on a congressional appearance last week, attention immediately turned to the possibility of Mueller testifying. And Trump was watching.
The president stewed for days about the prospect of the media coverage that would be given to Mueller, a man Trump believes has been unfairly lionized across cable news and the front pages of the nation’s leading newspapers for two years, according to three White House officials and Republicans close to the White House.
Trump feared a repeat – but bigger – of the February testimony of his former lawyer and fixer, Michael Cohen, which dominated news coverage and even overshadowed a nuclear summit with North Korean leader Kim Jong Un in Vietnam.
Trump has long known the power of televised images and feared that Americans would be captivated by seeing – and hearing – Mueller, who has not spoken publicly since being named special counsel.
While Mueller is a Justice Department employee, the department would generally handle requests for him to appear before Congress, and the Justice Department could delay or block Mueller from voluntarily appearing. Congress could issue a subpoena to compel him to appear before the committee.
It isn’t clear what grounds the Justice Department would use to justify an attempt to block Mueller’s testimony.
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As a private citizen, Mueller could decide whether to accept an invitation to appear or, if he declines, whether to attempt to resist any effort to subpoena him.
Rep. Jerrold Nadler, the chairman of the House Judiciary Committee, said last week the committee was “firming up the date” for Mueller’s testimony and hoping it would be May 15. If the Justice Department tries to block Mueller’s testimony, Democrats could issue a subpoena to try to compel his appearance.
Any showdown over Mueller’s testimony would add to tensions between House Democrats and the Justice Department. Barr has already defied a subpoena to provide the full, unredacted version of Mueller’s report, and Nadler has scheduled a Wednesday vote to hold the attorney general in contempt of Congress.
Mueller turned over his findings to Barr on March 22. Mueller did not find a criminal conspiracy between Russia and the Trump campaign but did not come to a definitive conclusion on whether the president obstructed justice. Two days later, Barr sent Congress a four-page letter detailing Mueller’s principal conclusion and giving his own finding that there was insufficient evidence to bring obstruction charges against the president.
On the day the report was turned over to Barr, Mueller’s spokesman, Peter Carr, issued a statement saying that Mueller would be “concluding his service within the coming days.” He said a small staff remained at the special counsel’s office to “assist in closing the operations of the office.”
When asked Monday about Mueller’s continued employment, Carr said he had nothing to add beyond that March 22 statement.
While House Democrats have already asked Mueller to testify, Senate Democrats, as the minority in the chamber, are more limited. They don’t have the power to set the hearing schedules or compel officials to appear. But they are trying to build a case in public opinion that it’s Mueller, not Barr, who needs to tell the story.
Senate Judiciary Chairman Lindsey Graham, R-S.C., has said he doesn’t plan to invite Mueller to testify on the report.
While Trump told those around him that Mueller had “exonerated” him, a sense was growing in the West Wing that the special counsel’s gravitas would add weight to some of the politically damaging and embarrassing material about Trump in the special counsel’s report.
Although the president had previously indicated he would not have a problem if Mueller testified, he lashed out against the prospect over the weekend, furthering his administration’s efforts to stonewall all Democratic lines of inquiry.