Author Of Special Counsel Rules, Neal Katyal’s Analysis Of Mueller’s Testimony

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Neal Katyal who wrote the Special Counsel rules in 1999 shares his analysis of the FBI”s Special Counsel Robert Mueller’s 7/24/2019 testimony before the US House’s Committee hearings regarding his findings as per his 3/22/2019 final report based on the FBI’s 22 months long Trump Russia probe.

Maddow Blog @MaddowBlog tweeted following on 7/24/19:

“I know that the Trump White House and conservative media are trying to, like, chin up! tonight, make it seem like they had a great day today. Everything was fine! Nobody died! They did not have a great day today. This was the president’s day today.”
“GOP Rep. Ken Buck: “Could you charge the President with a crime after he left office?”
“Mueller: “Yes.”
Buck: “You believe that…you could charge the President of the United States with obstruction of justice after he left office?”
Mueller: “Yes.”
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Note: President Trump can be arrested if he’s not reelected in 2020 but if he’s reelected, 5 year “statute of limitations” kicks in where he could skate. In criminal law, this time isn’t tolled and Rep. Nadler cannot keep promise to pass a law to fix it when it’d be DOA in GOP-led US Senate.
The Impeachment inquiry/ investigation is the House’s one sure constitutionally mandated powerful tool designed by our forefathers to hold wanna-be tyrants like President Trump accountable for his criminal activities being run out of the White House. 
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Here is the rest of the story…

On July 24, 2019, Isaac Chotiner of the New Yorker penned the following report, “Neal Katyal Has One More Question for Robert Mueller After His Testimony”


“On Wednesday (7/24/2019), 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 didn’t 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 (7/24/2019), “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 doesn’t accuse people of crimes without charging them, he could not even say whether Trump’s conduct constituted obstruction of justice.”

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“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,”

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“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.”

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“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 22 months investigating this. And we should know what those views are.”

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“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 focused 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 focusing on that, because it’s a 448-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.”


  1. Gronda, thanks for posting this. I am posting a comment I just made on BrookingsLib’s blog.

    I have read the Mueller report, but did not watch the testimony as I do not care for the posturing of politicians. What the president is reacting to is Mueller is unlike him. – he is somber, more about reality than perception. Since Mueller is not effusive and skilled in spin doctoring, the president claims victory. But, words matter.

    This independent and former GOP and Dem voter’s conclusions from the Mueller report highlighted by a few testimonial tidbits I saw on the news are as follows:

    – The Russians clearly influenced our 2016 election and are doing so right now for 2020. This very low key man was making a huge statement that should be heeded, which concurs with that of the president’s CIA and National Security directors.

    – The report documents that not only is the president less than truthful, his staff knows this (note, a KEY takeaway from the testimony is the answer Mueller gave that not only were Trump’s written answers incomplete and contradictory, but they were “generally” untrue).

    – The president clearly attempted to obstruct justice and would have succeeded more if his staff did not refuse his orders to do questionable activity. White House Counsel Don McGahn threatened to and did eventually resign.

    – While no coordination with Russia was proven, there was a lot of lying going on by multiple parties which begs a lot of why questions, there was evidence that was not obtained or reviewed and there was a lot of contact by the campaign with many Russians (Mueller noted in his testimony this is not ethical or appropriate). A key lie was by Michael Cohen regarding ongoing discussion about a Moscow Trump tower for six months after he said it had stopped, which is damning since Trump said he had no financial dealings with Russia at all.

    I would ask Republican leaders what they plan to do about securing our elections and why do they continue to loyally defend a person where more questions need to be asked, not fewer. Senator McConnell refuses to consider such an effort to better secure our elections, which greatly troubles me and should every American. Keith

    Liked by 2 people

    • Dear Keith,

      I did watch hearings where Mr. Mueller testified before congressional oversight committees and he wasn’t up to par which does not mean that his testimony wasn’t devastating and/ or detract from his character.

      It became apparent to me that Mr. Mueller was suffering from some ill effects. like perhaps burnout from having worked numerous hours under a pressure cooker environment and /or from perhaps a stroke. There was a reason he didn’t want to testify. That the GOP would attack this decent public servant just goes to prove their depravity. One of the worst of these lawmakers was Rep. Ratcliffe, which is reason President wants him to replace DNI Director Coats, another consummate, competent professional who acted in a non partisan manner.

      The Judiciary Committee Chair Rep. Jerry Nadler did leak to media outlets that he had not been informed about Mr. Mueller’s condition by those he had been working with in negotiating process. I suspect that based on what he saw, this motivated him to step out to initiate Impeachment Investigation despite resistance of House Speaker Nancy Pelosi.

      Hugs, Gronda


      • Gronda, words matter. He speaks too much like an attorney rather than trying to reach the audience. He wanted to avoid too much discussion. But the report is indicting and he did add that Trump lied in his answers. We should remember that Flynn went to jail of lying to the FBI. Keith


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