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The tense negotiations over whether Robert Mueller can testify before Congress, explained

Democrats desperately want to hear from Mueller. They fear Trump will block him from testifying.

Mueller Testifies At Senate FBI Oversight Hearing
Robert Mueller testifies at a 2013 Senate Judiciary Committee hearing, back when he was director of the FBI. Mueller is supposed to testify in front of Congress later this month.
Alex Wong/Getty Images

An escalating subpoena war between the executive and legislative branches has Democrats fearful that the Trump administration may try to prevent special counsel Robert Mueller from testifying in front of Congress.

Mueller tentatively agreed to a May 15 hearing date at the invitation of the House Judiciary Committee — but he won’t be testifying in the coming week, committee Chair Jerry Nadler (D-NY) told reporters on Friday. For the past few weeks, Attorney General William Barr has said publicly he has no objection. But in recent days, President Donald Trump has gone from saying it’s up to Barr to decide to declaring via tweet that “Bob Mueller should not testify.”

Mueller is still technically a Justice Department employee until the end of the month, which means Barr is still his boss. Now, Democrats are afraid that Trump’s outburst means the president will try to prevent Mueller from appearing in front of Congress.

House Judiciary Committee Chair Jerry Nadler (D-NY) told CNN on Wednesday that he is “less confident” on whether Mueller will still testify, given Trump’s tweets.

“I think the president will try to stop Robert Mueller [from testifying] — whether he will succeed is another question,” Nadler told CNN’s Alisyn Camerota.

On Thursday morning, Judiciary Committee ranking member Doug Collins (R-GA) told Fox News that Mueller will not testify on May 15, as far as he knows.

“We’ve not gotten any notice, and they would have had to notify that hearing already,” Collins said, adding that it’s a “flat-out no.”

Tensions between Democratic-controlled House committees and the White House reached a breaking point this week, as the Judiciary Committee voted on a resolution to hold Barr in contempt of Congress for failing to produce the full, unredacted Mueller report. Democrats are also seriously considering taking the Trump administration to court to get their subpoena requests fulfilled, given the White House’s blanket denial of House subpoenas.

Democrats are getting increasingly nervous that Trump will block Mueller.

Negotiations with Mueller are ongoing — and his status as a DOJ employee could matter

Democrats on the Judiciary Committee are still negotiating with Mueller over a date to testify. Nadler told reporters on Friday that he hasn’t spoken to Mueller directly as part of those negotiations. Nadler added he hopes he does not have to subpoena Mueller to get him in front of the Judiciary Committee.

Still, President Trump’s statements are looming large over the proceedings.

Judiciary Committee member Rep. Pramila Jayapal (D-WA) told Vox that Trump’s statements have confused members, who are getting mixed messages from his tweets and White House officials.

“Trump said he doesn’t want Mueller to testify. We don’t know what that means; White House officials kind of played that down and said, ‘Oh, no, that’s not an official position,’” Jayapal. “But we have no idea, so we’re still negotiating with Mueller to get him here to testify before us.”

One thing that’s coming into play is Mueller’s status as a DOJ employee. Democrats on the committee believe Mueller will be an employee there for the rest of the month, and they’re concerned that means they won’t get to talk to him until the month is over.

Rep. David Cicilline (D-RI), another Democrat on Judiciary, told Vox he believes it will be easier for Mueller to testify once he leaves the DOJ and resumes life as a private citizen.

“I think it is more difficult for the president to attempt to impede his appearance or prevent him from coming before the committee if he no longer works at the Department of Justice,” Cicilline said.

Mueller not testifying could give Democrats more legal ammunition

Democrats are on the verge of going to court with the Trump administration. Their Wednesday vote to hold Barr in contempt of Congress was the first step in doing so, Judiciary Committee members said.

“We need to do the contempt parts before House counsel goes to litigate in court,” Rep. Ted Lieu (D-CA) told reporters. “The first option would be to win in court; we have a very strong case.”

The contempt resolution Democrats passed centered specifically on Barr’s failure to produce the unredacted Mueller report, but the problem of the Trump administration refusing to respond to subpoena requests is much larger than that. Trump stated he and his administration are fighting all of Democrats’ subpoenas, ranging from the Mueller report to information on how the White House processes security clearances to details about Trump’s own finances.

On Wednesday, Trump also asserted executive privilege to block the House from accessing the entire Mueller report and its underlying documents — the first time the president has used his executive powers to protect portions of Mueller’s findings.

Democrats are arguing that Trump’s executive branch is keeping the legislative branch from doing its legal job of oversight by withholding all information from them. And Democrats are issuing a stark warning about the health of American democracy in the face of Trump’s attacks.

“Now is the time of testing whether we can keep our republic, or whether this republic is destined to change into a different, more tyrannical form of government,” Nadler said after Wednesday’s contempt hearing. “We must resist this.”

Democrats believe this blanket denial of their requests will help them in court. And if Mueller is somehow blocked from testifying after Barr has publicly said he may, that could help their legal argument in front of a judge. The breadth of Trump’s refusals has been surprising even to a conservative legal scholar who used to be a high-ranking official in George W. Bush’s Department of Justice.

“The thing that’s unusual is the blanket refusal,” John Yoo, the former deputy assistant US attorney general in the Bush DOJ’s Office of Legal Counsel, told the New York Times. “It would be extraordinary if the president actually were to try to stop all congressional testimony on subpoenaed issues. That would actually be unprecedented if it were a complete ban.”

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