20 questions for Robert Mueller
The “American Sphinx” will be called to Congress on July 17 to provide answers to our most intriguing questions. Special counsel Robert Mueller spoke briefly about his report on May 29 and made it clear that he was appointed to ask, not to answer, questions. He said, “The report is my testimony,” adding that, “I hope and expect this will be the only time I speak to you in this manner.” Sphinxes are not accustomed to answering questions, and speaking to one is a precarious practice since, according to mythology, you would be devoured if you got her answers wrong. But Mueller may be aware that, when a sphinx is outsmarted, it is the end of the sphinx. In mythology, the sphinx threw herself from a great height.
When Mueller ascends Capitol Hill next month, the question is whether he will take a pass or a header from that great height. If he sticks with his earlier position, he will do little but repeat findings from the report. But if lawmakers want answers from this sphinx, here are 20 questions to ask. When exactly did you determine that no collusion had occurred between Donald Trump or his team and the Russian government or other Russian interests either before or immediately after the 2016 presidential election?
You met with President Trump after he fired FBI Director James Comey. Trump has said the meeting was actually an interview for your possible appointment as the successor to Comey. Presumably, the firing of Comey and its basis were discussed. Did Trump explain his reasons to you? Given that you were one of the first outside individuals to meet with Trump on this firing, did that create a conflict for you as a fact witness in any later investigation? Did you seek an ethics opinion on that alleged conflict?
Moreover, Deputy Attorney General Rod Rosenstein was also involved in the decision making on the firing, including his memorandum detailing violations by Comey. Did you seek to interview Rosenstein and raise the obvious conflict of interest in his overseeing the investigation? You met with Rosenstein and Attorney General William Barr weeks before the release of your report. Both told you to identify all grand jury material to allow for its expedited release. But why did you decide not to do so?
Do you agree that neither you nor the attorney general can release grand jury to the public or to Congress? You have said you do not question that Barr and his staff acted in good faith in the redactions made to the report. Did your special counsel staff participate and agree with the redactions made to the public report? You wrote to Barr asking for the release of long summary sections. But these sections had not been cleared for release by the career Justice Department staff redacting grand jury and confidential material in your report. Could Barr simply release such sections without such an official review? Did some of those sections ultimately include any redacted material and, therefore, would have been improperly released?
Your report references the policy of the Justice Department office of legal counsel against indicting a sitting president. But the underlying memos do not say anything about finding criminal conduct in a special counsel report, correct? Is it not true that Barr and Rosenstein, your supervisors, encouraged you to reach a conclusion on both crimes of obstruction and collusion? If you were concerned about your interpretation of the memos, why did you not follow the standard approach of requesting an opinion from the office of legal counsel during your investigation? If there had been disagreement among your staff on the scope of the obstruction provisions, why did you not likewise request an opinion on that issue?
Do you believe Barr and Rosenstein violated Justice Department policy in reaching a conclusion on obstruction and, if not, why did you not follow their requests and reach a conclusion yourself? You found no evidence to support a criminal charge of collusion or conspiracy with the Russians by Trump. Is it not true that you found no such evidence by any campaign officials or family members to justify an indictment or criminal referral?
Your report spends 14 pages discussing the Trump Tower meeting in three years ago. You did not find that the mere meeting with Russians to hear promised evidence of criminal conduct by Hillary Clinton constituted a crime, correct? You were not limited in any way from indicting Donald Trump Jr. or the other individuals in that Trump Tower meeting, correct?
In your report, you quote a voicemail message from Trump attorney John Dowd to counsel for former national security adviser Michael Flynn. Dowd says “we need some kind of heads up” for the sake of “protecting all our interests if we can.” But you deleted the rest of the line where Dowd says “without you having to give up” any “confidential information.” That is material to what he was asking and left a more sinister impression of the call to Flynn. Why did you decide to cut out the exculpatory language?
Barr has said that, while you may have an alternative view of the scope of obstruction, you found evidence of various noncriminal motivations and not clear corrupt intent. Is that correct? You described the testimony of former White House counsel Don McGahn that he believed Trump ordered him to fire you. However, you do not quote what McGahn precisely said were the words spoken by Trump. Did he testify that Trump directly told him to fire you, or did he say that Trump wanted him to raise your alleged conflicts with Rosenstein? Is it a crime for a president to raise a conflict of interest of a special counsel with the attorney general or his designate?
If there was evidence that Trump demanded the end of the investigation, as opposed to the possible selection of a new special counsel, would you have included that in your report? You wrote that if you “had confidence after a thorough investigation of the fact that the president clearly did not commit obstruction of justice” that you would so state. However, you also claim it would be inappropriate to accuse Trump of criminal acts, since he would not be able to defend himself in a trial. Do you not do precisely that with this statement? By not reaching a conclusion, do you not deny Trump the ability to respond to the specific findings of the elements of a crime?
It is unlikely that Mueller will answer most, if any, of these questions. He has a curious interpretation of what a special counsel does. Everyone in the government and the public expected him to reach a conclusion. He spent two years and never told a soul outside of his staff that he would reach a conclusion on crimes related to collusion but not on obstruction. It is time for some clarity. We already know the answers to many of these questions, but we need Mueller to establish that record. He is very much like the description by Oscar Wilde of a character as someone who “had a passion for secrecy, but she herself was merely a sphinx without a secret.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.