Mueller mystery: Will he ever testify to Congress?

Democrats are trying to solve a mystery in Washington: Will Robert MuellerRobert (Bob) Swan MuellerTrump says he'll release financial records before election, knocks Dems' efforts House impeachment hearings: The witch hunt continues Speier says impeachment inquiry shows 'very strong case of bribery' by Trump MORE ever testify before Congress?

Weeks ago, it seemed all but certain that the special counsel would head to Capitol Hill in May to answer questions about his eponymous 448-page report on Russia's election interference and potential obstruction of justice by President TrumpDonald John TrumpLawmakers release defense bill with parental leave-for-Space-Force deal House Democrats expected to unveil articles of impeachment Tuesday Houston police chief excoriates McConnell, Cornyn and Cruz on gun violence MORE.

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Now, some frustrated Democrats say his testimony could slip into June, while others are beginning to doubt he’ll ever show, saying Mueller has no desire to become a political pawn in an ugly, partisan fight that’s become a proxy battle for the 2020 presidential race. 

“He doesn’t want to be trashed by the Republicans,” said Rep. Jackie SpeierKaren (Jackie) Lorraine Jacqueline SpeierPelosi faces tough choices on impeachment managers Speier to call on IG investigation into Navy chief's firing Nunes faces potential ethics review over alleged meeting with Ukrainian official MORE (D-Calif.), who serves on the House Intelligence Committee and is close to Speaker Nancy PelosiNancy PelosiHouse Democrats expected to unveil articles of impeachment Tuesday Impeachment witness to meet with Senate GOP Tuesday Press: Pelosi strikes back, hatred is a sin MORE, a fellow California Democrat. 

“Does anyone want their reputation dragged through the mud falsely? You’ve seen Jim JordanJames (Jim) Daniel JordanTrump, first lady take part in National Christmas Tree lighting The Hill's Morning Report - Dem impeachment report highlights phone records Lawmakers to watch during Wednesday's impeachment hearing MORE [R-Ohio] in action. He can handle his own, but they’ll ask questions like ‘Why didn’t you look at this, and why didn’t you look at that?’ I mean, talk about a thankless job,” Speier added. 

Many Democrats on the House Judiciary Committee have more questions than answers about whether Mueller and Trump’s former White House counsel Don McGahn will testify. The White House has already instructed McGahn not to comply with a request for documents from the committee, and Trump has signaled he is likely to assert executive privilege to block McGahn from testifying at a hearing scheduled for Tuesday.

“It’s a mystery about Mueller, and it’s a mystery about McGahn. I hope they both come,” Rep. Karen BassKaren Ruth BassThe US treats asylum seekers so poorly Lawmakers visit African migrants at US-Mexico border Preventative measures are needed in child welfare policy, data shows MORE (D-Calif.), a senior Judiciary member, told The Hill. “But right now, I do not believe they have refused. I do not know if they are being told they can’t come. So we maintain a hopeful position.”

Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerGOP lawmaker criticizes Democratic counsel over facial expression: 'Be very careful' Watchdog report finds FBI not motivated by political bias in Trump probe Judiciary fireworks: GOP accuses Democratic counsel of impugning Trump's motives MORE (N.Y.) and other Democrats want to hear from the special counsel rather than Attorney General William BarrWilliam Pelham BarrDemocrats rip Barr over IG statement: 'Mouthpiece' for Trump Comey in op-ed after IG report: 'Barr needs to stop acting like a Trump spokesperson' Graham: FBI investigation in 2016 turned into a 'criminal conspiracy' MORE, whom they accuse of mishandling Mueller’s findings in a way that was politically beneficial to Trump as he seeks a second term in the White House.

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Democrats are particularly interested in questioning Mueller about a letter he sent to Barr in late March asserting that the attorney general’s four-page memo to Congress did not “fully capture the context, nature and substance” of his investigation’s conclusions and pressing him to quickly release more details from the report.

But Judiciary Republicans are likely to focus on a distinctly different line of questioning, one that focuses on the origins of the Russia probe, which they allege was started by FBI agents seeking to undermine Trump.

“I have no objections to Bob Mueller testifying,” said Rep. John RatcliffeJohn Lee RatcliffeTrump, first lady take part in National Christmas Tree lighting Lawmakers to watch during Wednesday's impeachment hearing House Republicans on Judiciary strategize ahead of Wednesday's impeachment hearing MORE (R-Texas), who served as a federal prosecutor in Texas when Mueller was FBI director. “I have a lot of questions that I would love to get answers from Bob Mueller that would provide clarification to things that I think have been spun inappropriately in the media. I think he ought to have that opportunity.”

Just three months into his second go-round as attorney general, Barr has repeatedly said he has no problem with Mueller testifying, telling The Wall Street Journal on Wednesday, “It’s Bob’s call whether he wants to testify.” 

And Trump has left it up to Barr to make the ultimate call. But while the president has at times expressed ambivalence over Mueller testifying, he engaged in biting public attacks against Mueller and his prosecutors throughout the investigation, characterizing the 22-month probe as one run by “angry Democrats.”

On May 5, Trump publicly objected to the idea of Mueller answering lawmaker questions, tweeting that the special counsel “should not testify.”

Nadler and his tight-knit inner circle of counsel and staff have been directly negotiating with the Department of Justice (DOJ) for Mueller’s testimony. But he has kept those talks extremely close to the vest, not even reading in senior members of his panel, including Vice Chairwoman Mary Gay ScanlonMary Gay ScanlonOvernight Health Care — Presented by National Taxpayers Union — Buttigieg targets Warren, Sanders on health care ahead of debate | Judge overturns ObamaCare transgender protections | Poll sees support drop for 'Medicare for All' Lewandowski refuses to say whether Trump has offered him a pardon Four House Judiciary members say they will 'move forward' with impeachment MORE (D-Pa.).

“I am the vice chair, but I am not directly involved in those discussions,” Scanlon said.

Nadler has accused the DOJ of refusing to cooperate and deliberately dragging its feet, and he’s threatened to subpoena Mueller if he encounters more resistance. 

“We will subpoena whoever we have to subpoena,” Nadler said. “We will hear from Mueller. We will hear from McGahn. We will hear from a lot of other witnesses.”

House Intelligence Committee Chairman Adam SchiffAdam Bennett SchiffHouse Democrats expected to unveil articles of impeachment Tuesday Tempers flare at tense Judiciary hearing on impeachment Overnight Defense: Bombshell report reveals officials misled public over progress in Afghanistan | Amazon accuses Trump of 'improper pressure' in Pentagon contract decision | House Judiciary holds final impeachment hearing MORE (D-Calif.) is also trying to bring Mueller before his own panel, though it’s believed Judiciary would get the first crack at the special counsel. Any testimony by Mueller before the Intelligence panel would likely take place in a closed-door session.

Barr could order Mueller not to testify or try to delay his testimony while the special counsel is still employed at the DOJ. That would likely prompt a congressional subpoena.

But Mueller is expected to leave his DOJ post in the near future, which would give the Trump administration little control over his testimony as a private citizen. Some Democrats, however, fear Barr and White House officials will take whatever steps are needed to delay his potential testimony.

“They will probably keep him in employment so he can’t be a private citizen” until after the 2020 election, Speier said. “Talk about obstruction. There is obstruction everywhere we look.”

Peter Carr, a spokesman for Mueller, declined to comment Friday on the negotiations surrounding potential testimony. He also provided no update on the timing of Mueller’s eventual departure from the Justice Department.

Carr said in early May that Mueller “will be concluding his service within the coming days.”

The Justice Department and Nadler’s panel are already locked in a related battle over Mueller’s unredacted report and underlying evidence. The Judiciary Committee voted along party lines last week to hold Barr in contempt for failing to comply with a subpoena for Mueller’s full report and evidence. 

Trump, on the recommendation of the DOJ, asserted executive privilege over the subpoenaed materials as the committee moved forward with the contempt vote.

The Wall Street Journal reported Thursday that question of whether the privilege assertion could impact Mueller’s testimony led, in part, to the current impasse. 

The Justice Department did not respond to a request for comment.

Scanlon, the Judiciary panel’s vice chairwoman, called it “complete poppycock” if the DOJ is trying to cite executive privilege as a way to stop Mueller’s testimony.

“The report is public. You can talk about a public report. The report talks about things that happened before the president was the president. So you cannot exert executive privilege over something that happened before you were the president,” Scanlon told The Hill. “It’s just completely off the charts in terms of being an excessive, overly broad attempt to exercise executive privilege.”

But if Mueller is unwilling to testify, that would create a new and unexpected hurdle for Democrats who want to know why he didn’t ultimately make a call on whether Trump committed a crime after examining 10 instances of possible obstruction.

Mueller remained quiet throughout his nearly two-year investigation, speaking only through court filings and his exhaustive report on Russian interference, a redacted version of which Barr released publicly in April. He was rarely seen in public during the course of the probe and was notably absent at Barr’s press conference announcing the report’s release.

Barr issued a four-page memo to Congress on March 24 revealing that Mueller did not find evidence to charge members of the Trump campaign with conspiring with Russia; he also revealed that Mueller’s report explicitly did not “exonerate” Trump on allegations of obstruction. The attorney general and his deputy deemed the evidence insufficient to accuse Trump of obstructing the probe.

“Mueller has to be heard from,” said Rep. Gerry ConnollyGerald (Gerry) Edward ConnollyDemocrats debate scope of impeachment charges House Democrats rebuke State Department for 'reversal' on Israeli settlements Maloney wins House Oversight gavel MORE (D-Va.). “Only he can provide definitive testimony with respect to the interpretation of his report, and commenting on sources such that he can and meaning and further implication.”

“Tell us all about why you decided you could not indict the sitting president. Tell us all about why it looks like you essentially said the president committed obstruction of justice. Are we reading that right?” Connolly added. “Only under questioning can we get answers to those critical lines of inquiry.” 

Olivia Beavers contributed.