The Art and Science of Cross-Examining Mueller

A few tips for Republicans during the upcoming testimony from the Special Counsel.

American Spectator:

In a desperate effort to squeeze political advantage out of the Special Counsel’s report exonerating Donald Trump and his presidential campaign of conspiring with Russia to affect the outcome of the 2016 election, Congressional Democrats have subpoenaed Robert Mueller to testify before the Oversight and Judiciary committees of the House of Representatives. They apparently believe that Mueller’s testimony will further their impeachment narrative by drawing public attention to those portions of the report interpreted by some partisans as demonstrating that President Trump obstructed the investigation of his non-conspiracy with Russia.

Quite understandably, Congressional Republicans have been slapping their foreheads in joyous disbelief at the Democrats’ decision to expose Mueller to cross-examination by the minority members on those committees. Mueller, his band of angry Hillary Clinton acolytes, and their innuendo-laden report certainly have many glaring vulnerabilities that experienced cross-examiners can exploit to the president’s benefit. But before the president’s supporters get too carried away at the happy prospect of Mueller squirming, sweating, and ultimately going catatonic under the relentless questioning of avenging House Republicans, a few words of caution are in order.

First, cross-examination is at once an art and a science, subject to certain rules that must be followed in order for it to be effective. Unfortunately, most members of Congress are terrible questioners and even worse cross-examiners. They tend to ask sloppy, convoluted, and easily evaded questions with little follow-up. It’s not their fault or even a part of their job description. It’s just the way it is.

Second, the committee format, which limits questioning by each member to a mere five minutes, makes it extremely difficult to lay the necessary foundation of any good cross-examination: the meticulous and comprehensive question-by-question preliminary process of pinning down the witness and closing off all rhetorical escape routes before the questioner can go in for the kill. Doing this well is difficult even for experienced trial lawyers who are not faced with an arbitrarily brief time limits.

So, how should the Republicans approach Mueller? Here are a few suggestions.

Not all cross-examination need be destructive or calculated to undermine the witness. In fact, if a witness has favorable information to impart, that should be elicited up front before the questioning becomes contentious.

For example, the Mueller report exonerates the president on the charge of conspiracy with Russia. Selected passages from the report that make that point should be read by the questioner to Mueller, and the questioner should follow the reading of each passage by asking, (a) Did I read that correctly, (b) In preparing and drafting the report, did you and your colleagues take care to have the report accurately reflect your findings, and (c) Is the passage that I just read the truth, the whole truth, and nothing but the truth? What’s Mueller going to do? Refute his own work product? read more