Mueller Hearing Lookahead NPR's Sarah McCammon speaks with former prosecutor Harry Litman about the upcoming Mueller hearings — and how to effectively ask questions to get answers out of a tight-lipped investigator.
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Mueller Hearing Lookahead

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Mueller Hearing Lookahead

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Mueller Hearing Lookahead

Mueller Hearing Lookahead

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NPR's Sarah McCammon speaks with former prosecutor Harry Litman about the upcoming Mueller hearings — and how to effectively ask questions to get answers out of a tight-lipped investigator.

SARAH MCCAMMON, HOST:

We're going to begin the program with a look ahead to this week's big event - former special counsel Robert Mueller's testimony before the House Judiciary and Intelligence Committees. It's happening on Wednesday, and all eyes will be on Mueller's responses and the questions being asked of him. But what goes into effective questioning, especially for a veteran like Mueller, who is a seasoned trial attorney and notoriously tight-lipped? To learn more, we've called on Harry Litman. He's a former federal prosecutor and a columnist for The Washington Post.

Welcome back to the program.

HARRY LITMAN: Thank you, Sarah. Good to be here.

MCCAMMON: So let's begin with the obvious. Mueller has stated he does not want to testify before Congress and that everything he has to say is in the report. But both Republicans and Democrats want to use this opportunity to create a narrative around the Mueller report. Who do you think has the tougher task here?

LITMAN: Well, that's a good question. I think the tougher task is for the Democrats. But the Republicans' task is a little bit deceptively tough because if they play by their playbook, they are likely, as they've done in the past, to really go after Mueller, the 13 angry Democrats and Strzok and Page and that whole scenario. And there's a real possibility that the tight-lipped Mr. Mueller does sort of rear up in response and offer a full-throated defense of his troops, which would be completely justified and would deflate what has been and what looks to be the sort of continuing Republican storyline going forward.

You know, a lot of this is the hearing itself, but it's going to be played through for most Americans the prism of sort of two or three or four soundbites. And if that's one of them, then that would have been a real tactical mistake by the Republicans. But for the Democrats, they have a lot of ground to cover in a short period of time. They're not necessarily the most skilled questioners. And it will be hard for them but not impossible to try to sort of go outside the four corners of the report in a few instances. And that would be very valuable. But if they push too hard, and Mueller bristles back, then they get a bad soundbite and are made to look overreaching.

MCCAMMON: As we all know, it's not Mueller's first time in front of lawmakers. How would you go about prepping somebody to question someone like him?

LITMAN: What you have to do, I think, 90% of the Democrats task is to be methodical and try to bring out the key facts in the report that people don't know. And that means sort of piecemeal, bite-sized questions tracking precisely the words of the report, questions he can't really answer any way but by affirming what's in the report and having a whole kind of litany of those. That is in some ways straightforward task, a methodical task, but the big one they have to really be disciplined to achieve. Then there's some, you know, other stretches they can try to accomplish. But to get that under their belt, they just have to very carefully choose and call out the best material and go through it one fact at a time the way trial lawyers do.

MCCAMMON: How hard is it to do that, though, when each lawmaker only gets five minutes?

LITMAN: Boy, what a terrible process, isn't it? And they get five minutes, and they each have their own agendas, and some want to grandstand. The basic task that they had before them is not that hard. And indications are they're aware of the failures of past hearings and the way they degenerated into what appear to people to be a food fight.

If they are disciplined, the point I'm talking about now, which is 90% of their task, is really straightforward. It can be - good trial lawyers would script this, and they can script this in a way that just marches through and then divide it up. If they don't get this right, you know, they sort of don't deserve to. Then there's some, you know, more ambitious lines of questioning. But this part really ought to be within their ken.

MCCAMMON: But how do they script it when they're going to be pinging and ponging right back and forth between parties? So how do you pick up where your colleague left off even if you have the discipline to do it?

LITMAN: Right, easily. First, OK, Sarah, you're going to do page 85. Here are the 10 facts that are on there. Go through one at a time. Here's the actual script. And we know how he's going to answer each of these questions because they are in the report. All right. On the decision to fire Comey, Trump tried to say it was Rosenstein's idea, correct? Yes. It wasn't Rosenstein's idea, right? That was false, right? And you go through in that way with leading questions.

Now, you're right that you only have five minutes, and so you have to really have timed things carefully in advance and carved up the episodes that you're detailing. Then there's the whole problem of the distraction that will come with the five minutes of obstreperous Republican questioning - though in the past, the questioning has been more sort of haranguing. And your absolute task there is to ignore it assiduously. Don't take the bait. And then simply say, Mr. Mueller, please turn to page 86 of your report. Now, you found this, right? And you found that.

MCCAMMON: As the coverage of the Mueller testimony unfolds this week, what are one or two things that you think people should be watching for to try to assess how the testimony went? What should we pay attention to?

LITMAN: For the Republicans, do they overplay their hand and have Mueller, you know, bristle and react? For the Dems, do they establish any kind of daylight between Mueller and Barr using the letter that Mueller wrote after Barr gave his initial characterization of the report? Will there be any way in which Mueller indicates that? And then can they actually get Mueller to opine - and this would be a home run for them - that but for the policy in the office of legal counsel memo saying you can't indict the president that there was criminal conduct here?

MCCAMMON: That's Harry Litman, former federal prosecutor. He's also the executive producer and host of the "Talking Feds" podcast.

Thank you so much.

LITMAN: Thanks for having me.

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