Stanford Law’s David Sklansky on Mueller Testimony

On July 24, Robert Mueller, special counsel looking into Russia’s interference into the 2016 election, spent seven hours in back-to-back hearings before the House Judiciary and Intelligence Committees, answering questions about the 448-page report that he and his team published in April. Here, Stanford Law Professor David Sklansky, a former federal prosecutor, discusses his testimony, highlights from the report, and charges that came out of the investigation.

What were the highlights from Special Counsel Mueller’s testimony Wednesday? 

Stanford Law Professor David Sklansky

For the most part, Mueller did what he said he would do:  he declined to go beyond the conclusions stated in the 400-page report he submitted in March.  He wasn’t baited into speculating about matters that went beyond the ambit of his investigation.

Mueller also reiterated two central points of his report:  first, that the Russian government interfered sweepingly and systematically in the 2016 presidential election in order to help elect Donald Trump; and second, that Mueller and his team did not exonerate Trump from allegations of obstruction of justice.  He also said that the Russians are ramping up to interfere in the 2020 election.

Did he tell us anything new?

The most important new information he provided was his emphatic denial, under oath, that he ever applied for or interviewed with President Trump for the job of FBI director.  That’s important because Trump has repeatedly claimed that Mueller did apply for that job and interviewed for it just before being appointed as Special Counsel, and that therefore Mueller had a conflict of interest.  Hours before Mueller testified, Trump repeated the claim on Twitter, and said there were “numerous witnesses to the interview,” including Vice President Pence.  So either Robert Mueller was lying under oath, or President Trump lied repeatedly about this on Twitter.  So far neither the Vice President nor any other “witnesses” have come forward to support Trump’s account.

Was it a useful exercise, for Mueller to testify?  Legally, could he have said more? Or was he barred by the guidance he received from the Department of Justice about his testimony?

I think it was useful to have him testify under oath regarding the very serious charge of conflict of interest leveled at him by the President.  Other than that, I’m not sure the hearings shed much light.  They didn’t provide new information about what Mueller and his team of prosecutors and investigators found.

I doubt Mueller felt significantly constrained by the guidance letter he was sent earlier in the week by Associate Deputy Attorney General Bradley Weinsheimer.  That letter warned Mueller that his testimony needed to “remain within the boundaries” of his report.  But Mueller is a private citizen at this point.  He had to respect valid claims of privilege, and he couldn’t disclose matters protected by grand jury secrecy, but other than that the Administration didn’t have the power to restrict his testimony.  So, yes, Mueller could have said more than he did.  For example, he could have offered his own opinion whether the President obstructed justice.  But Mueller has always been someone who takes professionalism seriously, and he didn’t think that offering his views on that would have been appropriate.

Did Mueller’s report address the main brief he was given by Acting AG Rod Rosenstein in 2017?  There have been suggestions that Mueller veered off track and shouldn’t have said anything about not being able to exonerate President Trump.

Mueller investigated what he was asked to investigate:  Russian interference in the 2016 election, ties between the Russian government and the Trump campaign, and related matters that arose in the course of his investigation, including potential efforts to obstruct justice.  At the end of Mueller’s investigation, DOJ regulations required him to provide the Attorney General with a report explaining the decisions he made regarding what charges to file and against whom.  That’s what Mueller’s report did.  It explained, in particular, that he did not charge Trump with any crimes because Department of Justice policies do not allow the indictment of a sitting president.  The report also set forth the evidence Mueller’s team uncovered relevant to possible obstruction of justice by the president, without reaching a conclusion about whether that evidence in fact demonstrated criminal activity.  That was consistent with the practice followed by other special counsels, dating back to Watergate.

Can you reiterate the main points of Mueller’s report, and the upshots of his investigation? What are the key takeaways from the report?

Sure, although first I want urge people to read the report for themselves.  You can download it for free.  It’s not exactly a beach book, but it’s not dense legalese, either.  And it’s really, really important, no matter whose side you take.  The President and his supporters say there was nothing to investigate; the President’s critics say that the report provides damning evidence of his venality and his contempt for the rule of law.  People should read the report and make up their own minds.

But here are what I would say are the main takeaways from the report:  (1) The Russian government interfered in the 2016 election in a “sweeping and systematic fashion,” and in a manner calculated to help Donald Trump get elected.  (2)  Mueller’s investigation did not find evidence allowing it to conclude with confidence that the Trump campaign conspired or coordinated with the Russians.  (3)  President Trump acted in ways that “were capable of exerting undue influence of law enforcement investigations,” but his subordinates often frustrated his efforts by failing to do what he asked them to do.  (4) Mueller did not reach a conclusion about whether the President was guilty of criminal obstruction of justice.  Mueller reasoned that the policy of the Department of Justice wouldn’t allow a criminal prosecution of the President while he was in office, and so therefore the President wouldn’t have an opportunity to clear his name.  On the other hand, if the evidence allowed a conclusion that the President didn’t obstruct justice, Mueller said he thought it would be appropriate for him to say so.  But the evidence, in Mueller’s view, didn’t allow that conclusion.  (Attorney General Barr later said that in his view the President’s actions didn’t constitute obstruction of justice.)

How many indictments were there?  What happened in those cases?  And were the charges serious?

During the course of his investigation, Mueller indicted 34 individuals and three companies.  Eight of the individuals have pleaded guilty to or been convicted of felonies, including Trump’s former campaign chair, Paul Manafort; his former deputy campaign chair, Rick Gates; Trump’s former National Security Advisor, Michael Flynn; Trump’s former lawyer Michael Cohen; and a foreign policy advisor to the Trump campaign, George Papadopoulous.  The charges range from lying to federal investigators to, in the case of Manafort and Gates, money laundering. Among the other defendants indicted by Mueller are several Russian nationals and Russian companies charged with illegally interfering in the 2016 U.S. presidential election, both through disinformation campaigns on social media and through the theft and dissemination of stolen emails.  One other defendant charged by Mueller, Roger Stone, is a longtime advisor to Donald Trump.  Stone is currently awaiting trial on charges of obstruction of justice, witness tampering, and lying to Congress, all apparently aimed at covering up the ties between the Russian government and the Trump campaign.  So yes, the charges that Mueller filed are serious.

David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement.