While members of the House majority stroke their chins over how to respond to the Mueller report, the false Trump/Barr no collusion/no obstruction narrative continues to dominate public perception. House leaders construe this uninformed public perception as reason to hesitate on impeachment. And the public, in turn, reads from the House’s hesitation that the report isn’t so bad. The longer the House waits before launching the inevitable impeachment probe, the more ground it will have to recover. The calendar demands speedy action. The House Judiciary Committee (HJC) should start by skipping testimony from Attorney General Barr and moving straight to Robert Mueller and his fact witnesses.
Barr is scheduled to testify before the HJC on May 2. The last thing the Committee should do is to waste precious time giving this mendacious man another platform to broadcast his false narrative about the Mueller report. While some majority members no doubt relish the prospect of catching Barr in his readily provable lies for all to see, with few exceptions Democrats on the Committee, handcuffed by the five-minute rule and the glare of TV lights, have been ineffective inquisitors.
Republican members, on the other hand, will not hesitate to use the hearing to buttress Barr and spout extended nonsense about the intelligence community abuses that triggered the special counsel investigation. They’ll offer Barr repeated opportunities to expand on his outrageous allegation that “spying” occurred; no matter that what they label spying was actually fully predicated surveillance authorized by federal judges on the FISA court, all of whose members are selected by that well-known anti-Republican partisan, Chief Justice John Roberts. This is a show the country does not need to repeat. And it is certainly not the way the committee majority wants to start educating the country about the real findings of the Mueller report.
Instead, cancel Barr and start with Mueller. Mueller’s testimony should do far more to enlighten the committee and undermine Barr’s false narrative than direct cross-examination of Barr. Barr’s lies are already on the record in his letter mis-summarizing the principal conclusions of the report and in the video of his misleading pre-release press conference. The most basic questioning of Mueller will establish that the report did not address “collusion,” much less find its absence; that contrary to Barr’s statement, Mueller relied heavily on the Office of Legal Counsel (OLC) opinion prohibiting indictment of a sitting president in deciding not to label the president a criminal; that he did not intend for Barr to make the call on obstruction of justice; and that Mueller most assuredly – and explicitly — did not clear Trump of obstruction of justice, instead laying out in detail ten obstructive episodes, at least eight of which any reasonable prosecutor would present to a grand jury for indictment absent the OLC memo. Mueller will also explain his rejection of Barr’s radical view that a president cannot obstruct justice so long as he is exercising a power granted to him by Article II of the Constitution.
Mueller can explain in detail the report’s findings regarding the Russian assault on the 2016 election, as well as the Trump campaign’s embrace of the Russian assistance; its unpatriotic failure to notify the FBI of the Russian intrusion; and the full extent of the campaign’s contacts with Russia. He can also walk through the episodes of obstruction and torpedo Barr’s suggestion that frustration excuses Trump’s conduct.
The Mueller hearing will be viewed extensively by the public. Most, of course, will not have read the 448-page report. Mueller’s testimony will be their introduction to the real narrative and the first debunking of the Trump/Barr cover narrative. Hear the corn popping, as people settle in for a high-drama civics lesson.
The committee should follow Mueller in rapid succession with testimony from as many of the principal fact witnesses behind the report as possible, starting with former White House counsel and self-described “real lawyer” Don McGahn, whose cooperation regarding obstruction is already winning him the Trump bully treatment. From there, the committee should run through the list of White House officials and Trump associates who contributed to the report.
Time’s a wastin’. The Trump/Barr narrative is festering, infecting the public consciousness, and the 2020 election is only a year-and-a-half away. There will be delays and impediments. The report reveals that fourteen referrals from the Mueller investigation remain with U.S. Attorney offices and we know the identities of the defendants in only two of them. The committee will have to coordinate with those investigations to ensure that it does not step on them.
Witnesses may assert their Fifth Amendment rights to remain silent, which they are entitled to do before Congress. The committee can seek to grant them immunity, but it must not do so in ways that jeopardize ongoing investigations or preempt significant future prosecutions. Witnesses may also assert executive privilege, though the privilege should be deemed waived regarding most information they volunteered to Mueller’s probe. If witnesses refuse to cooperate, the committee will have to go through the process of holding them in contempt and going to court to enforce the contempt order.
All of this can take time. Meanwhile, our house – the White House – is on fire and the fire is spreading to the foundations of our constitutional system. Congress is holding the hose. It needs to open the hydrant and let the water flow.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He currently serves as Lecturer in Law at Columbia Law School, and previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He also served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General. For three years, Bill served as Sen. Edward M. Kennedy’s chief counsel on the Senate Judiciary Committee, and has also held positions at AFJ and the American Constitution Society. The opinions of the writer are his own and do not necessarily represent the positions of Alliance for Justice.