Politics, policy and procedure of Mueller’s upcoming Congressional testimony

Three omnipresent factors dominate everything on Capitol Hill. They’re known as “the three P’s.” Politics, policy and procedure.

Politicians may quibble as to whether the politics are right about an issue. Are members politically in step with their districts or states on a topic? Maybe so. Maybe not. They don’t have to be. And, if a lawmaker strays too far afield from his or her voters, they often pay the price.

Lawmakers wrestle constantly about policy. This is the right approach for defense. No, this is the right policy for defense. No, you’re both wrong. Pols may be at odds over how to handle issues at the border, immigration, health care or even the debt ceiling. Their disposition may be right or flawed. But it doesn’t matter. Lawmakers don’t have to be right on the policies they support or reject.

And then there is procedure.

The politics can be off-kilter. The policy can be iffy. But the procedure cannot be out of alignment. Congressional rules are the Congressional rules. The Constitution is the Constitution. House and Senate precedent is House and Senate precedent. The only one of the three P’s which must be on target is the procedure.


This brings us to next Wednesday’s hearings with Special Counsel Robert Mueller before the House Judiciary and Intelligence Committees. The committees are still negotiating with Mueller’s team about the structure of the hearing. First of all, Mueller was only willing to come under a subpoena. So, the House issued a subpoena. Now, Mueller’s agreed to only submit to two hours of questioning apiece for both panels. But two hours may not be sufficient.

There is a time problem. House Rule XI, Clause 2(J) says that “each committee shall apply the five-minute rule during the questioning of witnesses in a hearing until such time as each member of the committee who so desires has had an opportunity to question in each witness.”

In other words, everyone is required to get five minutes to pose questions.

The Judiciary Committee is comprised of 41 members: 24 Democrats and 17 Republicans. If the committee abides by the House rule, that’s 205 minutes of Q&A alone. Three hours and 25 minutes. And things on Capitol Hill always consume much more time than expected.


Things are a little better for the Intelligence Committee. That panel has 22 members: 13 Democrats and nine Republicans. That would entail 110 minutes or an hour and 50 minutes. Still, there’s not much wiggle room.

Consider this: There are almost always opening statements by the chair, ranking minority member and the witness. Housekeeping consumes a few minutes. At a hearing of this magnitude, there’s a high possibility for disruptions from the audience and “parliamentary inquiries” from members about how the panel is proceeding. Those issues could start to devour the allocations pretty fast.

On the first day of confirmation hearings for Supreme Court Justice Brett Kavanaugh last September, senators wrangled for one hour and 17 minutes over procedure, documents, dilatory tactics and endured various crowd disruptions before Senate Judiciary Committee Chairman Chuck Grassley (R-IA) could finally read more than 12 words of his opening statement. All of that was even a couple of weeks before anyone heard anything about Kavanaugh’s accuser Christine Blasey Ford.

So what happens if lawmakers don’t get to engage Mueller in questions? Unclear. But the procedure would be off.

No one is quite sure where this is going.

House Judiciary Committee Democrats held a lengthy, closed-door session about the structure of the hearing on Wednesday night. Most lawmakers emerged with few answers. Nearly all replied that things were “in flux.” Reporters staking out the conclave even asked if “in flux” was a unified talking point Democrats agreed to. They denied it.

“These are ongoing discussions,” said Rep. Lou Correa (D-CA) as he headed down a corridor to avoid reporters.

“Is this going to be settled tonight?” asked yours truly.

“It’s ongoing discussions,” replied Correa. “It may not be settled until the day of the hearing.”

Rep. Debbie Mucarsel-Powell (D-FL) is a freshman member of the Judiciary Committee. She’d likely be one of the last members to question Mueller, due to her lack of seniority. Reporters asked if she’d be allowed to question Mueller.

“We are talking on the format. We haven’t decided yet,” replied Mucarsel-Powell. “We’re still negotiating with Mueller’s team on the timing and how much time we’re going to have.”

Rep. Sheila Jackson Lee (D-TX) is one of the most outspoken members on the Democratic side of the aisle. She rarely shies away from a reporter’s question in the hall or a TV camera. But not Wednesday night. Jackson Lee headed straight for the elevator.

“We are preparing for a full hearing with Mr. Mueller,” said Jackson Lee matter-of-factly as she slid into an elevator, the door closing on cue.

And it’s not just Democrats who are perturbed.

“I’m really irritated,” said Judiciary Committee member Rep. Debbie Lesko (R-AZ), who just joined the House 14 months ago. “I don’t even get to question him? This is just plain wrong. I’ve been elected just like anybody elsewhere and for the leadership in the committee to decide that only certain members and certain members even on (the Democratic side) of the aisle – that’s just plain wrong.”

Rep. Martha Roby (R-AL) tried to engage Judiciary Committee Chairman Jerry Nadler (D-NY) on the issue during a meeting of the panel Thursday morning.

“Could you lay out for us what exactly, with respect to the Muller hearing next week, what exactly you agreed to and why you agreed to it?” asked Roby.

Nadler finally responded after a pregnant and awkward pause.

“I’m not going to comment on that at this hearing. It is beyond the scope of this hearing,” replied Nadler.

The consternation for this hearing anyway, exacerbated by the time constraints. House Speaker Nancy Pelosi (D-CA) said she wouldn’t infuse herself into the debate in an effort to preserve the institution’s rules or to broker an agreement.

“I wish we had more time. But I’m glad we have the time we have,” said Pelosi. “On distribution of timing in committees, I’ll leave that up to the chairmen.”

So, Mueller is coming next Wednesday. The politics of having Mueller come could be right or wrong. The policy stances of Democrats and Republicans on the Russia probe could be right or wrong.


And if they only stick to two hours for each committee – thwarting many members from asking questions under House rules, the procedure is wrong.

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