Neal Katyal Has One More Question for Robert Mueller After His Testimony

On Wednesday, the former special counsel Robert Mueller testified before the House Judiciary and Intelligence committees about his report on Russian interference in the 2016 Presidential election. Mueller and his team charged several members of Trump’s inner circle with a variety of crimes but did not indict anyone for conspiring with the Russian government. On the question of Trump’s alleged obstruction of the investigation, however, their conclusions were less clear. As Mueller confirmed on Wednesday, “the President was not exculpated for the acts that he allegedly committed.” But a memo from the Office of Legal Counsel prevented Mueller from charging Trump with crimes while he is in office; and, Mueller claimed, because the Justice Department does not accuse people of crimes without charging them, he could not even say whether Trump’s conduct constituted obstruction of justice.

In his testimony before the Judiciary Committee, which concerned Volume II of the report, on Trump’s obstruction, Mueller did not go far beyond these conclusions. He refused to answer a number of questions or even to defend himself from Republican attacks. In the second hearing, with the Intelligence Committee, about Russian interference and its relation to the Trump campaign, he was more scathing in his account of Trump’s conduct and his willingness to welcome foreign interference in the election. “They’re doing it as we sit here,” Mueller said of Russian meddling. “And they expect to do it in the next campaign.”

To discuss what we learned from the hearings, I spoke by phone with Neal Katyal, who helped draft the special-counsel regulations, during the Clinton Administration, and was the acting Solicitor General under President Obama. Katyal is now a partner at the law firm Hogan Lovells and a professor at Georgetown Law School. During our conversation, which has been edited for length and clarity, we discussed the strengths and weaknesses of Mueller’s testimony, whether Mueller made mistakes during his investigation, and a question that Katyal believes should still be put to Mueller.

You wrote a piece for the Times a couple days ago saying that Mueller needed to be asked three questions. One was about whether the President was exonerated, to which Mueller clearly answered that he was not. The other two were whether the report found that “there was no collusion” and that “there was no obstruction.” Do you feel as if we got more clarity on those questions?

Yeah, I think we got more clarity on both. On collusion, Mueller said that it didn’t meet the criminal standard—beyond a reasonable doubt. But he said in the second hearing that that isn’t the relevant question when you are talking about the highest official in the land. A shade shy of being a federal felon isn’t exactly a ringing endorsement. So I think we got a lot of progress on that. On the obstruction, he was very clear in saying he couldn’t reach such a determination because of the D.O.J. opinion.

As the last half of that piece said, there should be two follow-up questions, because Mueller—who is very by the book—has to be asked questions when the book has changed. And the book has changed because Attorney General [William] Barr, in an interview in May with CBS News, said that Mueller couldn’t indict but could have made a determination on whether the conduct constituted obstruction of justice. And so I was shocked that the Democrats didn’t ask that question and press Mueller on it, because the Attorney General himself gave sanction for it, and for answering it. I understand why, when Mueller turned in his report, he felt like he couldn’t answer that question. But, after Barr changed the rule book, he very well could have.

Even if Barr hadn’t said that, do you feel now that Mueller could have reached a conclusion on that opinion?

Yeah, I do. I don’t think there is anything in the Office of Legal Counsel opinion that precludes it. That is why Mueller gets paid the big bucks by the taxpayers. I do think that that question should have been answered. You won’t hear me say this too often, but on this one I did agree with Attorney General Barr.

When I interviewed you in April, you said, “Mueller believed—and I think this follows very standard D.O.J. thinking—that, if they have no way to defend themselves, then you don’t make the accusation.” Can you clarify that, given what you said you thought of what Barr said?

It is standard that, in general, as a prosecutor, if you are not going to indict, you don’t go off and say other stuff. There have obviously been some notable exceptions, with Comey and the Clinton e-mails being the most obvious. But that is the general rule. The hard thing is that this is anything but an ordinary case. This is the incredibly rare circumstance in which you can’t indict because of a constitutional prohibition on indictment. And, in that circumstance, I can see reasonable arguments being advanced, pro and con. But the important thing here is that Barr himself has resolved this by saying, “Yes, I do think that question can be answered.” And so, in that circumstance, because the special-counsel regulations require the special counsel to follow what the Attorney General said, there is now no legal prohibition the way that Mueller thought there was when he wrote his report against reaching such a conclusion. And, ordinarily, that is what you would want anyone to do, because this guy has spent twenty-two months investigating this. And we should know what those views are.

Did you come to a better understanding of why Mueller did not push harder for an interview with the President?

Yes, I did, a little bit. He was pushed hard in the second hearing, and he said he was weighing the delay costs from seeking a subpoena, which Trump would undoubtedly litigate in the federal courts, with the need for the information. And, here, a member of Congress [Sean Patrick Maloney] drew Mueller’s attention to page thirteen of Volume II, which, I have to confess, even I—who follows this stuff very closely—hadn’t focussed on. The congressman is right that it goes into the explanation for why they didn’t subpoena the President, which says that we already had substantial evidence to make a determination about the President’s actions and whether they constituted obstruction of justice. I thought the hearing was good in focussing on that, because it is a four-hundred-and-forty-eight-page report. What that page says is that we didn’t even need to talk to the President. Effectively, we knew what was going on. That’s a screaming red neon sign for the special counsel’s office saying we think something very untoward happened here.

If you were unsure, you would push for the interview?

Exactly.

Given Mueller’s reading of the Office of Legal Counsel’s opinion, what could have even been learned from an interview? Let’s say that the President had lied to Mueller, or let’s say, conversely, that he had gone full Jack Nicholson and said he did obstruct justice and was proud of doing so. How could Mueller’s conclusion have been different?

It couldn’t have been different, given the O.L.C. opinion, for the time being. But it could have done two things. One is inform a future impeachment proceeding in either of those two directions, if either of those two things happened. It would be additional evidence one way or the other. And, second, it could be the basis for a further criminal prosecution down the road. One of the things that the Mueller report makes very clear that it is trying to do, self-consciously, is lay down a record, because witnesses forget things, and evidence gets lost over years. And so Mueller is trying hard in the report to document all he can. The fact that he is saying he didn’t want to delay things further to get a sit-down with the President is a pretty good indication that he already has enough.

And then we have one other big clue on this, which is Representative Ted Lieu’s exchange with Mueller. Mueller took back one statement in the second hearing. But I think the relevant point was that Lieu went through page 97 of [Volume II of] the report and the obstruction-of-justice allegation about trying to get [then Attorney General Jeff] Sessions to un-recuse [himself from the investigation]. With respect to that, there are three elements of obstruction, and Lieu went through them with Mueller. Is there an obstructive act? Is there a criminal intent? Is there a nexus between the criminal proceeding and the obstructive act? And he basically gets Mueller to admit that all three elements have been met. It’s another example of where Mueller keeps saying we didn’t reach a formal determination about obstruction, but there are only three elements, and he said they were all met. It’s not hard to draw the next inferential step from that.

In his testimony, Mueller made clear that the President could be charged with obstruction once he leaves office. But the exchange in which he said this, with Ted Buck, Republican of Colorado, was slightly unclear, and it wasn’t obvious whether Mueller was speaking specifically about Trump’s conduct in this investigation, I thought. What did you make of that exchange?

I didn’t read it, as some people on social media did, to say, “Mueller is saying Trump will be indicted when he leaves office.” I didn’t understand that to be what Mueller was saying. He is saying that is a possibility, and that is one reason why he documented all he documented and preserved all the evidence and collected all the evidence—so that information could be used by a future prosecutor. And, by the way, the Office of Legal Counsel opinion is express in saying that an investigation can still continue, both because a sitting President might be indicted after he or she leaves office, and maybe because there might be information that is generated that is helpful to an impeachment inquiry.

When I interviewed you several months ago, I asked whether Mueller made any obvious mistakes, and you answered, “No, not yet. But I’d want to think more about it.” How do you feel now?

Well, I do feel like Mueller had an obligation to answer the question about whether the President committed obstruction. I understand that he feels that he was bound not to seek a formal indictment. But that’s the sixty-four-thousand-dollar question with regard to that part of the report, and the Attorney General is even saying that he can answer the question. I don’t understand what possible argument there is against answering the question, and I would still like to see him answer that in a supplemental question for the record from Congress.

Just generally, was your sense that he didn’t say more because he couldn’t due to Department of Justice regulations, or because he didn’t want to?

Generally speaking, I think Mueller came across as a totally consummate, by-the-book prosecutor, someone who was not trying to go after someone or get someone, someone who was not political, and that undoubtedly is going to frustrate a good chunk of the country who want fireworks. I think that is why President Trump and his allies were so celebratory after the first hearing.

But it’s precisely that demeanor that made him so devastating in the second hearing. Because he isn’t the person the President has tried to paint him to be, an angry Democrat. Everything he said seemed so credible—when he said the Russians massively interfered in the election, that the President was the beneficiary of that on purpose, that the Trump campaign welcomed the assistance from Russia, that the President’s own son said he loved it if the Russians had dirt on Hillary, and that Trump himself had business dealings with Russia. Mueller said all those things in the first few minutes of the second hearing, and it was a scary portrait of a President and a Presidential campaign. We are just an hour into the end of the hearing, and we don’t know where things will go, but I suspect they will not go where he thought they were going earlier in the day. If you were Donald Trump, the second hearing was just about as bad as one could have ever feared.

Except Mueller didn’t say he obstructed justice.

The second hearing was about Volume I.

I know, I’m just saying—

Oh, I could imagine the whole day in many Democrats’ fantasies going differently.

Since you had a role in writing the special-counsel regulations, how will Mueller’s performance and view of his job affect other special counsels? Do you have any concerns on that score?

I do, but I think it is way too early for us to try and write some new rules. Whenever you are writing rules, you are always in danger of overcorrecting for the last problem. The Independent Counsel Act was a reaction to Watergate, four years earlier, and the feeling that there weren’t independent enough prosecutors. So then you have that for a long time, but then [after the independent counsel Ken Starr’s investigation of President Clinton] people feel like that is an overreaction, because it gives too much independence for a prosecutor, so they want something more accountable. And now people are feeling like we want some more independence. These are really hard questions, and not until this saga ends can you really assess the right thing to do.