Legal Mistakes

How Congress Can Exploit Mueller’s Legal Mistakes

The investigator made important errors in his Trump report. To make them count on Wednesday, members need to take a lesson from Watergate and hand over the microphone.

By JED HANDELSMAN SHUGERMAN

If recent history is any guide, Robert Mueller’s much-anticipated Capitol Hill appearance on Wednesday will fizzle into a mix of political grandstanding by the questioners and frustratingly narrow answers from the star witness. Congress's biggest public chance to highlight the links between the Trump campaign and Russia, and the president's acts of obstruction, will become a chance for members to showcase their wit, score politcial points and maybe even go viral with a dramatic exchange. This one was originally scheduled for last week, and a main reason for its delay is that the junior members of the Judiciary committee wouldn’t have enough time to get their own questions in.

So far, the solution has been to expand the hearing time. Here’s a better one: None of the members should ask the questions at all.

Their expert staffers should ask all the questions—not just to resolve the battle of egos, but to give Congress its only chance to make any real progress on the issue.

To go by Mueller's previous statements, the hearings aren't likely to turn up new information about the Trump campaign. But they could genuinely change the trajectory of the Trump-Russia story, by drawing connections between the report and Mueller's earlier rounds of indictments, and also by highlighting Mueller's legal errors—the opportunities he didn't take, and why he skipped them.

But that's only possible with the right format. The hearings are almost guaranteed to be a waste of time if they stick to the format of disjointed five-minute rotating rounds of questions by elected members. This format has proved to be a failure in the high-profile hearings of the past two years. Time and again, just when a member starts to make headway with follow-up questions, time runs out. Republican members alternate with Democratic members who have totally different political agendas; real progress as the hearing continues is rare.

Even if the Democratic members agree to ask the same kinds of questions, it is hard for even the best lawyers to follow up on someone else’s line of questioning or set up someone else’s questions. Two or three expert staff lawyers working together would be the only efficient and effective use of such limited and interrupted time.

To have any real hope of getting deeper into the story of Trump and Russia, or clarity about Mueller’s confusing conclusions, they’ll need questioners capable of drilling into complex issues, who can professionally but tenaciously grill a respected public figure and highlight his mistakes.

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It may seem surprising to suggest that the Democrats should highlight Mueller’s errors, but that should absolutely be part of their strategy.

The report was stunningly wrong, for instance, on the law of coordination in campaign finance law. The Department of Justice’s appointment letter assigned Mueller to investigate campaign “coordination.” His report stated that “ ‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement—tacit or express.” However, Congress explicitly aimed to avoid such a permissive interpretation. In 2002, Congress passed a statute declaring that campaign finance regulations “shall not require agreement or formal collaboration to establish coordination,” and any knowing and willful violations are criminal. The Federal Election Commission implemented the statute accordingly: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” without any requirement to prove agreement. The Supreme Court upheld these coordination rules in 2003: “[E]xpenditures made after a wink or nod often will be as useful to the candidate as cash.”

Mueller’s error in interpreting "coordination" has already had serious consequences. Mueller’s team prosecuted Paul Manafort and Rick Gates for separate crimes not directly related to the Trump campaign, but Mueller also found the evidence that these campaign officials committed felony coordination. It was a historic error to overlook such crimes, effectively inviting the same suggestions and winks-and-nods in 2020. A formal conclusion that the Trump campaign committed crimes would have made Trump’s obstruction more glaring and scandalous. Without such a conclusion, Volume II of his report, on the obstruction, fell flat.

Mueller made other legal errors that opened up loopholes for 2020 and beyond: suggesting that all “opposition research” might be protected by the First Amendment, and accepting a blanket defense of Manafort—a lawyer and a veteran campaign official or advisor in four presidential campaigns—as not “hav[ing] relevant knowledge of these legal issues.” If an operative like Manafort can't be assumed to have that knowledge, then who possibly could?

On the related facts, there are additional puzzles in the report’s omissions. Volume I, on the campaign and Russia, also surprisingly omits key facts that the Mueller team revealed elsewhere in prosecutorial documents, which when put in context make a case for criminal coordination. For example, the Mueller team's indictments of the Russian hackers showed a remarkable coincidence in dates between Trump campaign signals and Russian hacking and leaking efforts, often on the same day or even within hours. But the report itself either failed to note or failed to emphasize most of these.

In another tantalizing omission, the Mueller team’s indictment of Stone said a senior campaign official “was directed to contact Stone about any additional releases and what other damaging information [WikiLeaks] had regarding the Clinton Campaign.” Who directed that campaign official? Who was coordinating with Stone? Presumably these answers are redacted from the report, and Mueller will be reticent. But given the significance to these events, an expert questioner might elicit more context.

In addition, many prosecutors would have drawn far different inferences from so much circumstantial evidence of wrongdoing and intent. And even if Mueller couldn’t indict Trump under OLC policy, why did this policy have a double-whammy of not even being able to make legal conclusions and deliberately writing cryptically and sometimes incomprehensibly?

Of course, Mueller is unlikely to reveal any information we didn't know before, but the hearing could play the valuable role of drawing connections, correcting errors and laying out their significance in the public record.

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Mueller is rightly a respected, revered public servant, which makes any aggressive questioning like a cross-examination along these lines risky and awkward. He and his office professionally uncovered a president’s crimes, his campaign’s crimes, won a stunning number of convictions in a short period of time under tremendous political pressure and interference.

But the Mueller report’s legal errors are so significant that the House committees have a duty to press him to correct them through something like cross-examination. Cross-examining such is no simple task. Moreover, Mueller has promised to be such a reluctant witness that any questioning must be done by experienced experts with enough time for follow-ups. Cross-examining a smart and experienced lawyer —and rightly a hero to many—is a hard needle to thread legally and politically. And those complexities underscore the need for members of Congress to step aside and get some expert help.

Relying on expert questioners in place of elected officials isn't common, but shouldn't be so unusual. In moments of great national crisis—most notably Watergate, and also in the Iran-Contra scandal—members have been willing to concede the spotlinght and let more experienced lawyers handle the proceedings.

In Watergate, when members of Congress had questions for some of the most high-profile witnesses, or when they knew that the questions would produce bombshells, they didn’t keep the airtime for themselves. They graciously and wisely assigned the questioning to the committee counsel, and gave them time to probe and follow-up.

The result felt—and worked—like a real inquiry, in which trained lawyers followed full lines of questioning until they yielded real information. It was committee staff counsel, such as Sam Dash and Fred Thompson, who asked some of the most historic questions. They questioned White House lawyers H.R. Haldeman, John Ehrlichman, and John Dean.

In part because of the committee's savvy use of advance interviews, Thompson’s questions to Nixon aide Alexander Butterfield prompted him to reveal on national television the existence of the Oval Office taping system. When Dash asked him who knew about it, Butterfield replied: “The president.” Gasps filled the hearing room. In a remarkable example of restraint in the public interest, some of the senators had known the televised questioning of Butterfield was likely deliver a historic bombshell—and they gave the questions to their staff counsel nonetheless. Staffers asking questions with sufficient time and expertise were pivotal in transforming Watergate from a third-rate burglary to a resignation in the face of impeachment.

Something similar happened again during the biggest scandal of the Reagan administration. In 1987, during hearings about illegal arms sales to Iran used to fund the right-wing Nicaraguan Contras, Senate committee chief counsel Arthur Liman and House committee chief counsel John Nields led the questioning for 40 days of televised hearings—most notably the high-profile interrogation of Col. Oliver North and Admiral John Poindexter.

Liman’s intense questioning got North to admit on national television that CIA Director Casey had ordered him to destroy the notes and records of the illegal arms sales, and that he had indeed shredded those records. This format permitted Liman to follow up and press North to such an extent that North’s attorney Brendan Sullivan lost his temper in one of the most famous moments of the hearings, shouting at Liman, ''Get off his back!''

Robert Mueller’s hearing obviously won’t yield the kind of information that came from Butterfield or Haldeman during Watergate, or Iran-Contra’s Poindexter or North. He’s not an eyewitness, nor a hostile witness in a colloquial sense. But he is a uniquely complicated mix of helpful, when it comes to the underlying facts of presidential crimes, and stubbornly reluctant and deliberately unclear, when it comes to his and the DOJ’s legal positions.

The Mueller team’s fact-finding is so thorough, so important, and so damning of Trump’s criminal behavior, that committees need to highlight and emphasize those aspects of his work without the exercise feeling like a partisan gang tackle. Whereas the members of Congress might have a hard time maintaining an even tone, veteran litigators are more likely to keep their cool while keeping up an intense line of questioning. Mueller is rightly a respected, revered public servant, which makes any tough question akin to cross-examination risky and awkward.

There is sometimes a risk in delegating questions to staff. In the Kavanaugh hearings, the Senate Republicans looked like they were dodging an awkward situation by handing their questions of a vulnerable-seeming female witness to an outside lawyer. But there isn’t the same risk here. The perception—rightly—is that the Democrats are too focused on their own publicity. Delegating is more likely to be seen as unselfish.

During Watergate, Sam Dash’s and Fred Thompson’s questions did not make Senator Sam Ervin or Senator Howard Baker look weak. Instead, their professional incisive questions played a key role in making the hearings a success, which in turn made these Senators into legendary figures to this day. Giving it to lawyer staffers actually could reveal the House members’ wisdom and lower some of their own political risks, and most importantly, the expert lawyers just might get Mueller to correct some of his errors, fix some of the loopholes, and reveal something that changes the trajectory of the report from dud to bombshell.

The House Democrats can treat the hearing like a campaign event, making sure they each have their five minutes of airtime, with all the risks of that format falling flat. Or they have a chance to be remembered more like the Watergate committees: as wise and effective public servants who stepped back when it mattered for the country.