House Democrats are scrambling to secure Robert Mueller’s public testimony amid concerns from the special counsel and his staff about what he can share publicly related to his Russia investigation, according to key lawmakers and sources familiar with the talks.
Negotiations between Mueller’s team and staff on the Democrat-led Judiciary and Intelligence Committees have faltered in recent weeks over the best arrangement for open hearings involving the former FBI director. The sources say Mueller has been reluctant to set a firm date for hearings until he gets more clarity from his Justice Department supervisors about the boundaries for what exactly he can publicly discuss that goes beyond what’s in the redacted 448-page report released last month.
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“Mueller appears to be a by-the-book guy,” said a source familiar with the negotiations between the special counsel’s team and the Democrats. “As such, he needs clarity about what he can and cannot talk about and under what conditions, public or private, he can talk about that.”
“The Justice Department seems attuned to that, and Democrats think DOJ is fucking with him,” the source added.
Democrats have been eager to get Mueller on the record in a public setting — with the gavel-to-gavel live television coverage that comes with it — discussing his work over nearly two years examining Russian interference in the 2016 election and his offshoot probe into whether President Donald Trump obstructed justice to stymie that work.
But those efforts to land Mueller have stalled amid a broader fight between Democrats and the Trump administration over access to documents and testimony tied to the special counsel’s efforts. Some Democrats now say that despite their preference for a blockbuster public hearing, they should at least consider allowing some portion of the hearing to be behind closed doors.
“I’ll note that testimony given in private can be used in impeachment proceedings,” said Rep. Hank Johnson (D-Ga.). “I think we have to consider the unique circumstances of each witness as we move forward. So all possibilities in my mind are on the table.”
Rep. Sheila Jackson Lee, a senior member of the Judiciary Committee, said she thinks it’s important for Americans to hear directly from Mueller, but that there may be room to negotiate.
“It is also worthy of considering aspects that would be classified,” she said.
Jackson Lee confirmed in an interview on CNN Tuesday that Democrats are trying to accommodate the special counsel and remain open to both public and private testimony with Mueller if that makes it easier for the Russia investigator.
The Texas congresswoman added that Democratic committee attorneys have been in direct talks with the special counsel’s office, rather than his DOJ supervisors.
“I think what is important is to make Mr. Mueller comfortable in the open setting,” Jackson Lee said. “Obviously, there should be many options. There may be an option of doing both an open setting and a closed setting.”
“We want not Mr. Mueller’s very attractive presence, but we want the truth and the facts and the basis of volume two, which is that he left many of these issues of obstruction of justice to the Congress,” she added. “That means we have to do our job, and to do our job it’s important to have him as a witness.”
Not all members of the Judiciary Committee are open to private testimony from Mueller though.
“I think it’s important that Mr. Mueller come before the committee, but I also think it’s important to come before the committee and testify in public,” said Rep. David Cicilline (D-R.I.) “The American people have a right to hear Mr. Mueller walk through the Mueller report — the findings he made, the conclusions he came to, the evidence he collected.”
“They have a right to see the results of this investigation and to really hear from the individual who led it,” Cicilline said.
Judiciary Chairman Jerry Nadler last week said there’d be no Mueller hearing before the Memorial Day recess, meaning that testimony from the special counsel would need to wait until June at the earliest.
The New York Democrat had previously set a tentative May 23 deadline for Mueller to publicly testify in a letter last month after the release of a redacted version of the special counsel’s 448-page report.
But Nadler conceded that a delay would be necessary for his panel, which has been stuck in a broader fight with the Trump White House over access to documents and testimony tied to the Russia investigation.
Among the issues that have prompted the breakdown in talks between Mueller and the Democratic committees: Trump earlier this month wrote on Twitter that Mueller “should not testify” and his administration has invoked or threatened to invoke executive privilege on a range of outstanding congressional requests, including for access to a full unredacted version of the special counsel’s report and its underlying evidence.
In an interview last week with the Wall Street Journal, Attorney General William Barr said it’s up to Mueller to decide whether to appear before lawmakers. “It’s Bob’s call whether he wants to testify,” said Barr, who Nadler’s Judiciary Committee earlier this month voted to hold in contempt of Congress for failing to turn over a copy of the full Mueller report.
So far, Democrats and Mueller have yet to reach an agreement on the details or timing for a hearing with the special counsel. Peter Carr, a Mueller spokesman, declined comment when asked Tuesday about the special counsel making a public appearance before lawmakers.
Mueller remains a government employee and still has a small staff assisting him with closing down his office. But that designation, according to Greg Brower, the former head of the FBI congressional affairs office, may be part of the holdup in securing the special counsel’s testimony.
“I’m beginning to think that Mueller should resign from DOJ and simply decide what he wants to say,” Brower said.
He noted that Mueller’s work is already public except for the redacted materials in the report – which covers classified information, grand jury testimony, materials related to ongoing investigations and details that shield “peripheral third parties” from reputational damage. All of that should be off the table during a public hearing.
“If he waits for DOJ guidance, I’m afraid he will never get it,” Brower said.