NYT: DoJ leaning on two Mueller deputies not to appear in congressional hearing

William Barr took a hands-off approach when it came to the question of Robert Mueller testifying before Congress. When it comes to Mueller’s deputies, the Department of Justice takes a more hands-on attitude, the New York Times reports. The DoJ is actively discouraging two members of Mueller’s special counsel office from appearing before Congress, although there’s not much they can do about it, legally speaking:


The Justice Department is seeking to discourage Robert S. Mueller III’s deputies from testifying before Congress, potentially jeopardizing an agreement for two of the former prosecutors to answer lawmakers’ questions in private next week, according to two government officials familiar with the matter.

The department told the House Intelligence and Judiciary Committees last week that it was opposed to the testimony and had communicated its view to the two former members of Mr. Mueller’s team, Aaron Zebley and James L. Quarles III, according to a senior congressional official familiar with the discussions. A Justice Department official confirmed that account and said that the department had instructed both men not to appear. …

Both Mr. Zebley and Mr. Quarles have left the Justice Department and are now private citizens, meaning that the department most likely cannot actually block their testimony. But the department’s view — depending on how strongly it is expressed — could have a chilling effect on two longtime employees and give them cover to avoid testifying.

That’s a very good question, and one that might end up getting litigated. Technically, both men worked for the DoJ and their work is the DoJ’s product. They would be — at least theoretically — still subject to the DoJ’s direction in discussing it, although that would clearly be only theoretical. Congress can and does call employees to provide honest testimony about their work on a regular basis.


The only legal fig leaf the DoJ might have here is executive privilege. Once Donald Trump has invoked it, the DoJ has to enforce it. As it so happens, Quarles’ focus in the special counsel probe was on the obstruction issue, precisely where Trump’s claims of executive privilege applies. Zebley had a broader reach as Mueller’s de facto chief of staff and might have some room to testify about the Russia-collusion investigation, but House Democrats already know that’s a dry hole. They want to build a case for obstruction in order to gin up support for impeachment, and their invitations to Quarles and Zebley suggest they know they won’t get much help from Mueller himself in that regard.

Even if the DoJ warns off Quarles and Zebley, House Judiciary chair Jerrold Nadler has a Plan B:

The House Judiciary Committee will vote on Thursday to authorize subpoenas for 12 of former special counsel Robert Mueller’s witnesses — including President Donald Trump’s son-in-law Jared Kushner, former Attorney General Jeff Sessions, his former deputy Rod Rosenstein, former national security adviser Michael Flynn, former chief of staff John Kelly and former Trump campaign manager Corey Lewandowski.

Each of the witnesses provided crucial testimony to Mueller about Trump’s efforts to thwart the Russia investigation, and the committee’s efforts are certain to meet resistance from a White House that has already blocked testimony from senior aides like former White House Counsel Don McGahn and former longtime adviser Hope Hicks. …

The barrage of subpoena authorizations represents a major expansion of the committee’s Trump-focused investigation, casting a wider net from obstruction of justice to hush-money payments. The committee has faced repeated resistance from the White House as it investigates obstruction of justice allegations against the president.


That got an immediate response from the committee’s ranking member, which was the rhetorical equivalent of a yawn:

“Mr. Mueller’s team issued more than 2,800 subpoenas before concluding that no Americans conspired with Russia,” Georgia Rep. Doug Collins, the top Republican on the Judiciary Committee, said in a statement. “Even if Chairman Nadler still believes subpoenas are conversation starters, it’s hard to imagine this handful of subpoenas will do anything but reinforce the principal conclusions we’ve been able to read about for months.”

The executive privilege claim will likely apply to most of the people on Nadler’s new list anyway. One exception will be Lewandowski, who never held a formal post in the White House. Another will be American Media execs David Pecker and Dylan Howard, who are expected to be questioned about their assistance to Trump in silencing women claiming sexual relationships and/or harassment. Almost all of that has been publicly litigated already, however, and won’t add much except titillation to otherwise dreary committee proceedings.

Donald Trump only provided a brief response on Twitter this morning, presumably accessible even to those who had been blocked previously from the account:


It may not be a witch hunt, but thus far it looks like an extended beating of a long-dead equine, and not much more.


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John Sexton 3:20 PM on September 26, 2023