House Democrats caught wind of Robert Mueller’s reluctance earlier this year: the special counsel may not be “up to” testifying after he concluded his Russia probe.
The chatter was second-hand and cryptic. Staffers negotiating to get Mueller to appear on Capitol Hill weren’t sure where the messages were originally coming from. Were people close to Mueller sending a signal? Or was it just Justice Department officials who didn’t want the blockbuster hearing to go forward? Were there fears that Mueller’s reputation would be savaged in the hyper-partisan political circus of 2019? Were there stamina concerns?
Those questions resurfaced on Wednesday morning amid Mueller’s halting performance before the House Judiciary Committee. At times, the former FBI director — who had earned a reputation as a studious and hard-nosed witness over dozens of congressional hearings in the 2000s — seemed unfamiliar with details from his nearly two-year-old investigation. He repeatedly asked lawmakers to pose questions again.
Even as Mueller became more forceful in his afternoon testimony, the narrative seemed set. People across the political spectrum, even those who have worked with Mueller, were airing concerns that the 74-year-old longtime lawman, at a minimum, appeared out of practice.
“This is delicate to say, but Mueller, whom I deeply respect, has not publicly testified before Congress in at least six years. And he does not appear as sharp as he was then,” David Axelrod, the former top Obama White House strategist while Mueller was FBI director, wrote on Twitter about 45 minutes into the nationally televised hearing.
“Bob Mueller is struggling,” added Glenn Kirschner, a former federal prosecutor who worked under Mueller in the U.S. attorney’s office in Washington, D.C. “It strikes me as a health issue. We need only look at footage of his earlier congressional appearances to see the dramatic difference in his demeanor and communicative abilities.”
Others cautioned that the curt and careful responses may have simply reflected Mueller’s stubborn desire to remain above the political fray, not stray from his 448-page report and protect any ongoing investigations.
Those who know the former special counsel have long said that he detested being used as a political pawn on Capitol Hill during his years as the FBI head. Indeed, a congressional source involved in negotiations over Mueller’s appearance said the committees were specifically informed the former special counsel would decline to read from his report during the hearing. Mueller had also long signaled his answers would not leave the “four corners” of his report, and DOJ had sent him guidance similarly requesting that he not discuss anything outside the report.
“He was clearly a reluctant and tentative witness, and wanted to say as little as he could beyond the report,” said Julian Epstein, a former Democratic general counsel for the House Judiciary Committee. "I think this big event will leave us with a political Rorschach test. Both sides will take away from it what they want to and we will be left tomorrow exactly in the same place we were today.”
What played out Wednesday may have been foreshadowed in the private chatter among current and former DOJ officials and House staffers as the Mueller probe that had dominated Donald Trump’s presidency drew to its close. Reporters started hearing in early April about Mueller’s reluctance to testify before the House, and sources on and off Capitol Hill began trying to ferret out the reasoning for the reluctance.
The speculation only grew after NBC aired footage of one of its reporters approaching Mueller as he was leaving Easter church services and had a stilted exchange seeking comment about his willingness to testify to Congress that concluded with a “no comment” from the special counsel. About five weeks later, Mueller tripped on his words a few times as he delivered his first public statement since taking the appointment in May 2017.
Few were willing to go on the record addressing the concerns about Mueller, though, except to push back on the idea he wasn’t ready for a prime-time hearing.
“I don’t know what to make of it,” Will Moschella, who ran the DOJ congressional affairs office during the George W. Bush administration, told POLITICO in May when asked about the rumors. “If he was up to the task of being special counsel, I think he’s up to the task of testifying.”
“This is the guy who got both knees replaced and then showed up to work two days after,” he added.
“He’s very good,” Ohio GOP Rep. Steve Chabot told POLITICO in an interview in May as the negotiations between Mueller’s representatives and the House Democrats dragged on. “I’ve had the good fortune to query him a number of times when he was the FBI director. He’s a straight-forward guy.”
On Wednesday, however, those whispers broke into the public domain.
Mueller danced around a variety of lawmaker queries on everything from whether Trump obstructed justice to his hiring decisions.
On 30 occasions, Mueller asked House members from the two committees to repeat questions, according to a POLITICO tally from the hearing. He said he was unfamiliar with the so-called “Steele dossier” containing salacious allegations about Trump’s ties to Russia, as well as the predecessor to the special counsel regulations DOJ used for his appointment. He flubbed a question about his resume, misstating the president who had appointed him the United States attorney for Massachusetts.
After a lunch break, Mueller corrected an earlier answer in which he insinuated that his team may have charged Trump with obstruction of justice were it not for a DOJ policy that bars sitting presidents from indictment.
“That is not the correct way to say it,” Mueller said. “We did not reach a determination as to whether the President committed a crime.”
Democrats seemed to recognize the challenge early. Judiciary Chairman Jerry Nadler called an unexpected recess about 90 minutes into the morning hearing to give Mueller a short break. When lawmakers returned, Arizona Rep. Greg Stanton asked Mueller a series of questions about his career and background that came across as a memory test of sorts for the longtime DOJ official.
Still, the concerns about how Mueller was doing were echoed by people who know him.
“Take a break and listen on the radio, or close your eyes for a couple of minutes. He sounds much older — his starched, tall, distinguished physical appearance helps a great deal,” a former senior FBI official told POLITICO.
“He is clearly struggling a little, especially with long, convoluted questions. Having said that, even Mueller at his peak would be playing it very conservatively and would be giving short, curt answers,” added a second former FBI official.
Predictably, the Trump camp pounced on the narrative, pushing the notion that Mueller was out of touch in both subtle and not-so-subtle ways — and backing up their allegations that a biased team behind the special counsel did all the heavy lifting.
Recalling an interaction with the special counsel, Rudy Giuliani on Fox & Friends Wednesday morning before the hearing said Mueller “showed up once.”
“I said, ‘I remember this guy 20, 30 years ago. What happened to him?’” said Giuliani, the former New York mayor whose own erratic behavior became an issue as he represented the president.
Indeed, Mueller’s efforts ricocheted across the conservative media.
“Dazed and confused,” read the Drudge Report’s banner headline. “At times it was halting and slow and painful,” Fox News anchor Bret Baier said during the first break. “If Democrats wanted this to be about the movie, it was sometimes not a great narrative to watch as far as being a smooth movie to watch for the special counsel as he testifies about his report.”
Many Democrats saw the conservatives’ quick attacks on Mueller’s demeanor as a pre-planned strategy.
“It seems apparent that a combination of Republicans observing Mueller at his press conference, observing his manner when he was approached by the NBC reporter at his car and likely they know people at DOJ right up to the attorney general who had interactions, that they anticipated that he’d appear this way and that they have calibrated their strategy accordingly,” said Ted Kalo, a former Democratic general counsel to the House Judiciary Committee.
And roughly two-and-a half-hours after his initial tweet, Axelrod was only more downcast.
“This is very, very painful," he said in a follow-up post on Twitter.
Natasha Bertrand and Josh Gerstein contributed to this report.
Article originally published on POLITICO Magazine