I am harry litman, a former United States attorney and Deputy Assistant attorney general and current Washington Post columnist. We are here in washington, dc live to tape a series of podcast episodes just blocks from the capitol dome. All this thanks to our gracious host here at georgetown Laws Institute for constitutional advocacy and protection and for this episode as well the american constitutional constitution society, the leading Progressive Organization in network with over 200 lawyer and student chapters nationwide. All this week we are talking about what happens after Robert Mueller. What are the challenges and prospects for our Democratic Institutions . Today we are focused on what happens the day of Robert Muellers testimony to congress. Prior to the announcement of muellers testimony, the house s effort to bring the report to life seemed to be getting nowhere and near checkmated. 13 weeks have passed and the house hasnt succeeded in having a single fact witness testified publicly. Stymied repeatedly by the andnistrations reflexive ultraaggressive policy of interposing dubious defenses that Left Congress having to choose between caving in and litigating, the latter involving significant time. But Robert Mueller is a law ,iter, and he got law abider and he got a lawful subpoena and agreed to testify notwithstanding clearly preferring not to. The stakes for the house are enormous. They must use the opportunity if they can to make the American People understand the gravity of the offenses and misconduct laid out in the report, as pretty much anyone of the. 01 who has read the 448 page report does. Its a complicated undertaking with strident opposition from the republicans and the overall need to treat mueller respectfully. So how should they approach it in Broad Strokes . We have a remarkable panel to address these questions on tactics and ron klain, executive Vice President and general counsel at revolution llc. Ron is the former chief of staff to Vice President joe biden as well as Vice President al gore ,nd attorney general janet reno and i am leaving out a long list of accomplishments with a distinguished career in Public Service and the private sector. Hes also the former chief counsel to the Senate Judiciary committee. Ron, welcome. Ron thanks. Harry next, tim lynch joins us. Tim is a principal at the reagan group specializing in government affairs. He is the former deputy general counsel to the Ranking Member of the House Oversight committee, but also a former assistant u. S. Attorney in the Eastern District of new york. Tim, welcome. Tim glad to be here. Harry next, matthew miller, a proud look partner at the end public partner at the innovaro, the department of justice the former Communications Director for the House Democratic committee and i think its fair to say a charter member of a of the talking feds podcast, but its especially good to have him here today. Thanks for coming. Matthew great to be here in person. Tim we are truly honored to harry we are truly honored to have Andrew Mccabe join us for the first time. He is the former Deputy Director of the fbi, the former acting director of the fbi, as well now as the author of the threat, how the fbi protects america in the age of trump, which i think trump, which i think will be must reading not just now but in the future as we try to dissect everything that has happened in this tumultuous few years. Welcome andy, thank you so much for coming. Andrew thanks very much for having me. Harry quite enough for me. Lets dive in. So many things to think about and putting ourselves in congress position. Let me start by challenging my own premise. Have i sort of overstated the stakes here . Does the house have to swing for the fences or will a single suffice . How much pressure is on them now let me ask you, ron, to start with that and then anyone else way in. Weigh in. Ron im about im a bit of the democratic mueller critic and i think democrats on the hill made a mistake and so much at stake on the Mueller Report and postponing any investigation s until the report came out. And i think if they are expecting some dramatic event when he testifie,s there will be testifies, they will be sorely disappointed. The entire Mueller Report is minimizing the significance of trumps wrongdoing. I think it misses the ball badly on Critical Issues of Campaign Finance law, and i think that if they think they are going to get some explosive statements out of mueller, they are not going to get it. Look, i do think they can shape and focus their questioning to emphasize certain things. They will have the cameras there. They can try and reinforce the point that Robert Mueller didnt exonerate the president. But i do think there is a lot of buildup for what be a very may disappointing show when mueller testifies. I will add to that a little, and i wonder what tim s. Inks of it as a former au where even to try to explain it takes about a five minute wind up because you have mueller just tiptoeing around conclusions that leave Congress Without any ability to make a kind of clean sentence. Of course, he found obstruction for example so he was gentile and a lot of thoughts and just left it very difficult even to try to explain. Tim, what do you think about the report itself even though thats a kind of departure from it is not. It will actually be the number one exhibit come wednesday. Tim let me just do i think we need to swing for the fences . No. When i used to try cases if you , try to swing for the fences oftentimes it falls flat. What they need to do is use this opportunity as a reset button. You know, barr was successful in his Misinformation Campaign around the report, and so this is an opportunity, since most americans have not read the report, to educate the public about the most serious actions aspects of the report. For Something Like this, for a report in this complex, they have to pick and choose and focus on for example the most serious aspects of wrongdoing on obstruction of justice. And youve got to use the report as a guide in your approach with mueller, particularly given that he has already said he wants to try to stay within that. You want to use and highlight the most serious aspects in obstruction, whether its instances that the president tried to fire the special counsel. I think thats going to be key. They have got to pick and choose and hone in on that. Youve only got a short amount of time. Harry that might be true not just wednesday but in general. Let me challenge or react to your premise. I think there is tension maybe even flat out difference of opinion with ron, because if you swing for the fences, you often flail, but not when you are down three runs, and we are in the ninth inning. So is reset politically, and i would, you know maybe even just , rationally feasible now. They have a pretty good day, so what . Do they is there so much that has to be accomplished wednesday to change the dynamic that a mere reset cannot do the job . I think the question is if you are house democrats, what do you want to come out of this hearing . There was a time the president and country thought this might be a threat to his presidency. Those days are over. He is not going to be removed from office. Harry when he first heard about it, he said i am done. [speaking simultaneously] we have talked on the podcast before about what i see as Inflection Points, and how they have all gone his way. Robert mueller not making a call on obstruction, barr whitewashing things and giving trump a fourweek headstart. This might go against him, but i think it is too much to think 16 weeks after the report was turned into doj, 12 after it was you willto the public, see an Inflection Point so dramatic it will completely perverse things and lead to another existential threat that removes the president. Dot the democrats ought to is just try to draw for the American People what some of the reports findings are and try to show that the report does show he committed a crime. And i think they are going to have to be very creative in the the way they do that because harry you got a tough witness here, dont you . Matthew you have a tough witness. He has been prepped before Congress Many times. Hes been prepped by people like me and ron many times. Dont go beyond the four corners of the report. Dont take hypotheticals or speculate. They are going to have to be creative that ask general questions and then get to specifics. So for example, you start by for to it a crime direct a witness to create a false document that contradicts his truthful testimony . The answer is yes. Has the department harry the answer is i dont want to speculate hypothetically. Matthew has the department prosecuted people for that in the past . The answer to that question is yes. Harry nice pivot there. Matthew did the president direct someone to create a false document contradict that testimony . The answer to that is yes. You draw it in without him expecting to come out and say what we hope were the magic words. Harry right. Andy can add the extra vantage , knowing the director very well or having seen him testify, and not to mention, being on the hot seat probably more times you can count. So given the kind of when i said he was a tough witness, it is not just that he will be well prepared, but it is a real dilemma, you know, whether you have to wear kid gloves or not, given who he is. What do you think would count as a victory, all things considered, for the judiciary majority at this point . Andrew you know, i agree matt. I think the committee should roll into this hearing with a purpose of communicating the substance of the report in the broadest and most accessible way to the American Public as they can. Forget about articles of impeachment. Forget about what the vote count will be in the senate. The idea here is to get the information in that report which was presented in a legalistic and dense way, communicated in a very clear and simple way. I think the way you do that is by setting the ground rules, explaining for people and having mueller answer these questions in a leading fashion, that the way prosecutors prove cases, every crime comes has specific elements, and the way prosecutors prove cases is they show they present evidence that supports each one of those elements. Mueller left you the road map. There are 10 categories of obstructive activity detailed in that report. On eight of those categories, he concludes that there is significant evidence to prove every element of that crime of obstruction. Harry and that i would say is an understatement. You actually read into those paragraphs, he doesnt conclude that he concludes theres obstructive absolutely, he does. Andrew absolutely, he does. Thats where i would walk mueller. He is going to be a reluctant witness, on his best and most cooperative days. The director is not a strong witness because hes dramatic or he is verbose, or he lays out a narrative in the way other witnesses do. Hes a strong witness because he knows his facts. Hes been impeccably prepared and he will answer questions directly. Knowing that, i will go in as matt kind of gave an example just a minute ago with very specific leading questions, forcing him to acknowledge that the elements of this crime have been essentially proven in the report in a number of different ways. Harry ron, you had a point ron yeah, i mean, i guess i get that strategy. I probably have a different strategy which is i think where the democrats are is, they need to think about not what happens on july 17, but what happens on july 18. Harry right. Ron what happens next . I think even if they have a good day with mueller, and they coax him to say some things, whatever, their biggest vulnerability is its just over at sunset. So i think their objective in the hearing has to be to say hey, theres more things to investigate. They need to leave that with more doors open than closed. And i think thats more about testing mueller on whats not in the report. Not that hes going to comment on it, but what are the areas of investigation mueller didnt complete . What are the things he looked at but didnt run to ground . I mean, overall i think my biggest one of my biggest critiques of the report is they set the Legal Standard thats just the wrong Legal Standard under federal election law. He could not establish that there was coordination. Thats just not the standard in the federal election law. You dont need an explicit or implicit agreement to have coordination unlawful coordination in federal election law. I think there are a lot of areas where the mueller didnt run the thing to ground on work with the wikileaks, and what did donald trump, jr. Do with the folks at wikileaks and roger stone . So bottom line is, i think figuring out i think the discussion of whats in the report is important, but whats more important is opening the doors to whats not in the report that congress then on july 18 can say hey, this is why we need to do more hearings. This is why we need to look into more things. Harry i just want to say like , just in these eight minutes, we have established a very big fault line in this panel. You are now in congress, and it is, are we going to go for the four corners, or are we going to go broader because we have to establish that we have work to do . Thats one fundamental question, and leaving aside who is making it, the five minute structure, whats going to be happening with the republicans. Let me try to turn it around. Ok. I think weve identified everyone seems to be thinking nothing is going to clear the fences tomorrow. And theres some discussion excuse me, on wednesday. Theres some discussion about what will be good enough to go on. What, matt, would be like a clear loss, would be like game over, see you next season, really theres just no more air in the tires, to keep the metaphors for and trump can say were done . Matthew i mean, honestly a clear loss would be a hearing thats looked like a lot of the hearings that the committee has held previously where you see a lot of bickering between the members. The republicans are successful. You have a twohour cap on this hearing, the republicans are successful in interrupting and dragging things out, so in the two hours you dont get that many questions asked. And i think this is i have a lot of friends on that committee, as probably a lot of us do, a lot of poor questioning from the members. So you leave with the takeaway from the American People being this is a food fight on the hill, a partisan food fight that didnt establish anything. Both because theres a lot of bickering, which you cant help, but because theres a lot of poor questioning, which you can help, but im afraid they wont. Harry and andy, muellers composure is legendary, but how is it going to be for him to be sitting in in the chair how and people on the committee telling him a criminal, etc. , do you see him being inflappable, do you see him even trying to respond and be polite or tuning them out . Andrew i see director mueller handling that sort of stuff particularly well. Those are not balls that hes going to swing at. Hes so straight ahead in his responses. He will call a spade a spade, but hes not going to get into an argument with the questioner. I think matts point is well taken, that the democrats have to set themselves apart as actually pursuing a substantive goal in this hearing, rather than just trading barbs. If each one of these fiveminute questioning on the majority side comes down to, you know, individual members trying to show how outraged they are at the president and then we get nowhere. We end up with that swing and a miss. If they can return to an actual substantive pursuit, with each round of questioning, which is hard to do, and its distributed across that way. Harry it really is hard. Let me ask it. I mean, because youve got both the hill experience and the experience, the ausa given this limitation, you know, they are not going to have skilled questioners actually offering it. What about if you could give advice, and maybe you are, in terms of crafting actual questions. I think it was andy talked about leading questions. Is that the way to go . How would you actually, you know, brainstorm like pen to paper what question one looks like, two, three, and four . Tim so you really have do particularly for the members who , are questioning mueller, you really need to in my view harry because everyone knows tim theres going to be some closeddoor session harry i see what you mean, ok. Tim you really need to have the members use the report as a foundation. And you really have to focus them on the key parts, you know, whether its obstruction. So for example, mr. Mueller, you know, you found, you know, and i quote substantial evidence that the president tried to fire you on this day. Harry let me stop you right now. Are you then just going to do a leading question, or are you going to try to pin him to say exactly what hes talking about, at the risk of his responding, well, member lynch its in the , report that tim your followup is tell us in your own words what was the substantial evidence you found on that. Harry and what are you going to think will he tell in his own , words or will he say look as it says on page 88, this is what i found. Tim no, he will tell it in his own words. Harry thats the thing. Hes not hes not squirrely. Ive seen him testify, and it hasnt been the same kind of drama, but hes unfailingly polite, you might try to say, or responsive. H