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.

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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”

Excerpts:

“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.”

“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,”

“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.”

“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.”

“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.”