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What Robert Mueller Didn’t Say in His Day-Long Testimony

Former special counsel Robert Mueller appeared Wednesday before Congress for what turned out to be a day-long exercise in partisanship and re-iteration of his team’s report on the investigation into whether President Donald Trump and his 2016 campaign team had colluded with Russians. Many of Mueller’s responses appeared to be tacit, but what he did not say actually revealed a few key points. 

Mueller was asked several times about U.S. Attorney General William Barr, specifically Barr’s interpretation of the report for the public weeks ahead of the release of the redacted version. His interpretation contributed, in part, to Trump and his supporters’ insistence the president had been fully exonerated and that there was “no collusion,” as Trump had tweeted several times. 

He never outright calls the president and Barr liars, but his efficient and restrained answers did just that. The former special counsel and FBI Director made it very clear on numerous occasions during both the House Judiciary and House Intelligence Committee hearings that the president was not fully exonerated and there was room for further investigation. 

In one particular exchange House Judiciary Chairman Jerry Nadler of New York also asked: “The report did not conclude he did not commit obstruction of justice? Is that correct?”

“That is correct,” Mueller responded. 

Representative Mike Turner of Ohio had questioned Mueller on this point, saying Mueller and the FBI team did not need to include the fact they were not exonerating the president in the report because the Attorney General would have already understood neither he nor Mueller were allowed to do so. Mueller quickly retorted: “we included it in the report for exactly that reason, he may not know it and he should know it.” 

“Can’t get into that” was a common refrain for Mueller throughout the two hearings. It was his answer, in various incarnations, to several questions asked by Republican Congresswoman Martha Roby of Alabama. Republicans have been arguing Barr interpreted the report accurately when he held the first press conference. They also contend Mueller was at fault for not providing a public version of it for Barr from the beginning since the Attorney General had commented during his earlier confirmation hearing that he would be releasing the report publicly. 

Roby had asked specifically about a March 27 letter Mueller’s team sent to Barr, which had stated: "The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions...There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations."

Democrats naturally think Barr purposefully presented the conclusions of the letter incorrectly to support the president. 

Roby kept probing about the letter as well as why Mueller did not provide a redacted version of the report earlier, but Mueller held his tongue about criticizing Barr. He only commented: “the letter speaks for itself.” 

Heidi Li Feldman, a professor at Georgetown University Law Center, told Fortune that his reticence to speak against Barr was “totally unsurprising.” 

She said while it is “tricky to decide who is the client of a special counsel,” Mueller worked under the authority of the Department of Justice (DOJ) and the attorney general’s office the last 22 months. Feldman said the “norms” of the profession “tilt against [Mueller] discussing” Barr in that manner. 

Feldman said Mueller’s general “reticence speaks volumes,” adding that he “knows anything that he says...could be used by those who want to smear he and his team.” 

To a lay person his responses may have seemed clipped for a particular reason, but Feldman explained this was likely “not about strategy, but clarity.” As a lawyer with extensive judicial experience, Mueller knows witnesses should answer the question at hand and not speak ad nauseum, which opens the door for mistakes and traps. 

And, Feldman added, Mueller was an “impeccable witness on his own behalf” while protecting his credibility and re-affirming what was already written in the report. 

“We did not reach a determination as to whether the president committed a crime,” Mueller said earlier in the day to Congressman Ted Lieu of Texas. There had been speculation for months as to why the former special counsel had not indicted the president. He noted, in the exchange with Lieu, that the Department of Justice’s Office of Legislative Counsel’s guidelines prevented him from doing so to a sitting president. 

But, he stopped short of saying the OLC was the only thing standing between Trump and criminal charges. He also did not comment on a signed open letter from a thousand attorneys who said if Trump was not president, the evidence presented in the report would have been sufficient enough to bring him up on criminal charges. Feldman explained Mueller’s terse responses on these issues were actually clear, legally speaking. 

“Good lawyers are good at compartmentalizing,” she explained, adding that Mueller was not “finding flaw in their logic, but he’s saying ‘it’s not my place to say’ whether there should be indictment or not. The lack of endorsement - nor dismissal of their conclusion - was not the clear cut or damning response many were expecting, but speaks to his credibility as a serious special prosecutor. 

The second hearing of the day with the House Intelligence Committee was also, if not more so, full of matters Mueller would not address. “I was appointed as a prosecutor and I intend to adhere to that role,” Mueller said, once again in a nod to the OLC guidelines. 

Outside of that “bailiwick,” as Mueller called it: a dossier on Trump  written by Christopher Steele, a former British intelligence officer, and anything involving Fusion GPS, an opposition research firm once hired by Hillary Clinton’s 2016 presidential campaign. He had laid out the premise in his opening statement: “I am unable to address questions about the opening of the FBI’s Russia investigation, which occurred months before my appointment, or matters related to the so-called Steele dossier. These matters are the subject of ongoing review by the department.” 

Trump has repeatedly pointed to the dossier as a reason for the “witch hunt” investigation into alleged collusion and obstruction of justice by he and his campaign team. 

Mueller’s inability or unwillingness to speak about that matter seemed to cause frustration among committee Republicans, particularly Congressman Greg Steube of Florida. “You had two years to investigate. Not once did you deem it worth to investigate how an ‘unverified’ document that was paid for by a political opponent was used to obtain a warrant to spy on the opposition of a political campaign,” Steube angrily asked. 

Mueller cut him off, replying he did “not accept [Steube’s] characterization of what occurred.” Once again, the former special counsel walked the line between wholly disputing what Steube and many Republicans have thought about the Steele dossier but stops short of presenting his own conclusions. 

Some Washington insiders have said this could mean the ongoing investigation leads to a post-presidency indictment of Trump or, at the very least, further investigation by Congress. But, Mieke Eoyang, vice president for think tank Third Way’s national security program, told Fortune that is not the only reason the House could continue digging. 

Eoyang said questions from Chairman Adam Schiff and Congressman Raja Krishnamoorthi of Illinois “point to a large number of areas...beyond the scope of the special counsel’s investigation.” Krishnamoorthi’s questions, and Mueller’s subsequent reticence to comment on national security matters, led to a checklist of sorts for the committee to pursue in the near future. Among the outstanding issues, according to the Congressman:  “the president’s financial ties or dealings with Russia in money laundering through the president’s businesses.”

More Mueller testimony coverage from Fortune:

—Robert Mueller testimony: What we learned so far

Trump goes on Twitter rant before, during Mueller testimony

—Robert Mueller’s opening statement: Read full text

—Trump 2020 campaign team using Mueller testimony to raise $2 million

—How 2020 democrats are responding to Robert Mueller’s testimony

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