Justice Department officials have communicated to Robert Mueller that the department expects him to limit his congressional testimony this week to the public findings of his 448-page report, according to one current and one former U.S. official familiar with the preparations.
In extensive discussions since the former special counsel was subpoenaed to testify on June 25, department officials have emphasized that they consider any evidence he gathered throughout the course of his investigation to be “presumptively privileged” and shielded from public disclosure.
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The Justice Department is “taking the position that anything outside the written pages of the report are things about which presidential privilege hasn’t been waived,” the former U.S. official said.
The White House and the Justice Department, meanwhile, have signaled they don’t intend to place lawyers in the room during Mueller’s highly-anticipated testimony before the House Judiciary and Intelligence committees on Wednesday.
Without a presence at the hearing, administration officials would have little recourse to prevent Mueller from going off-script and revealing details of his investigation that the White House considers off-limits. They are poised instead to rely on Mueller to self-police his remarks, indicating that they are confident the former special counsel will stick to carefully planned comments that mirror the public results of his investigation.
Their stance cuts against President Donald Trump’s own protestation that Mueller shouldn’t be allowed to testify, which he reiterated on Monday. “Highly conflicted Robert Mueller should not be given another bite at the apple,” Trump said in a Monday morning tweet.
The president has accused Democrats of trying to conduct a “do-over” of Mueller’s investigation into Russia’s interference in the 2016 election — a probe that he has falsely claimed “exonerates” him.
Mueller’s posture will likely deprive Democrats of an opportunity to get a clear answer from Mueller about whether he would have charged Trump with obstruction of justice if he were not the president — a reference to Mueller’s adherence to a Justice Department policy prohibiting the indictment of a sitting president — and other burning questions.
But some Democrats have said that even if Mueller simply reads from his report word-for-word, it would help educate the American public about Trump’s attempts to thwart the Russia probe.
Jim Popkin, a spokesman for Mueller, said he was unsure whether Mueller was in contact with the Justice Department about aspects of his investigation that the administration believes would be off-limits during his testimony.
“In terms of DOJ and the Hill, there have been discussions for purposes of scheduling and clearly … to understand what the expectations are,” Popkin told POLITICO. “But they have not seen the [opening] statement. They’ve not provided the statement to either DOJ or anyone in the House.”
Popkin emphasized that Mueller’s opening statement “will stick to the four walls of the report as much as that is possible.”
Mueller himself has stated that his congressional testimony would not go beyond what is contained within his report.
“[The report] contains our findings and analysis, and the reasons for the decisions we made,” Mueller said on May 29. “We chose those words carefully, and the work speaks for itself. The report is my testimony.”
Jay Sekulow, one of Trump’s personal attorneys, said on his radio show Monday that he, too, believes Mueller will not speak publicly about matters outside of his report.
“I think that would be completely unethical to go beyond the report,” Sekulow said, adding that he expects Republicans — who say they are essentially seeking to cross-examine Mueller and press him on the origins of the probe — to also face roadblocks.
The Justice Department’s deference to Mueller cuts against the administration’s handling of efforts by Congress to interview former officials who were crucial witnesses in the special counsel investigation.
White House lawyers have accompanied those high-level witnesses subpoenaed by Congress, including Trump’s former communications director Hope Hicks, to their hearings, objecting to hundreds of questions lobbed at them by Democratic lawmakers on the grounds that any conversations that took place during their time in the White House are subject to presidential privilege claims. The White House has consistently pushed the idea that some current and former advisers are “absolutely immune” from answering questions about their White House tenure.
Negotiations over the scope of Mueller’s testimony have taken place under a veil of secrecy. Justice Department officials have been discussing the parameters of Mueller’s testimony with him and his team ever since the former special counsel was subpoenaed last month.
Attorney General William Barr has said publicly that Mueller is free to testify on Capitol Hill, but he has also said that he would support Mueller if he decides to skip the hearing. The Justice Department has not indicated publicly whether it will direct Mueller to limit his remarks in any way, but a spokesperson said in a cryptic statement that the department expects Mueller to keep his testimony within the bounds of the report.
“As the attorney general has said, we support Special Counsel Mueller if he wants to testify or if he doesn’t want to testify,” a Justice Department official said. “He has said publicly that his report is his testimony and that is our expectation. We support that approach.”
As a private citizen, Mueller is not bound by assertions of presidential privilege, but he is known as a rule-follower who is unlikely to defy the administration’s direction.
A Judiciary Committee official said the panel does not anticipate that lawmakers would spar with Mueller over matters of presidential privilege.
“[T]hese are private individuals who no longer work at the Department of Justice. And although we acknowledge that these are career department officials who give quite a bit of deference to what the department says, the department cannot order them to do anything,” the Judiciary Committee official said.
Even though Trump and his aides are projecting a hands-off approach, they’ve previously signaled that they expect Mueller to closely guard the voluminous evidence he gathered about the inner workings of the Trump White House.
Trump’s former counsel Emmet Flood warned the Justice Department in April that it considers any of Mueller’s evidence, other than what’s contained in the public version of his report, “presumptively privileged” and forbidden from public disclosure.
In May, Trump asserted executive privilege over the entirety of Mueller’s report and the underlying evidence, as part of a bid to block the House Judiciary Committee’s access to the complete, unredacted report.
Trump invoked the broad privilege claim just minutes before the committeevotedto hold Barr in contempt of Congress — a move that came after hours of exhaustive negotiations between the committee and the Justice Department over how to delay the contempt proceedings. The White House later called Nadler’s demands “unlawful and reckless.”
Darren Samuelsohn contributed to this report.