Comment: How to question Mueller_00001011.jpg
Comment: Curb your enthusiasm
01:18 - Source: CNN

Editor’s Note: Shanlon Wu is a former federal prosecutor and CNN legal analyst. He served as counsel to Attorney General Janet Reno. Follow him @shanlonwu. The views expressed in this commentary are his own. View more opinion articles on CNN.

CNN  — 

What can we expect July 24 when Robert Mueller, the former special counsel, testifies in back-to-back hearings before the House Judiciary and House Intelligence Committees?

We can expect the testimony that Attorney General William Barr should have given. In short, Mueller will act and testify with all the dignity and integrity lacking in the current attorney general. Mueller will be factual, dispassionate and, most of all, accurate in his testimony.

Shanlon Wu

There will be no partisan spin. While we will not hear Mueller express sympathy for President Donald Trump’s feelings (or anyone else’s feelings), neither will we hear him express moral outrage over Trump’s actions. Mueller will also defend to the death his right not to speculate by reciting – mantra-like – his belief that his testimony must be limited to the four corners of his 400-page report.

Therefore, Democratic members of Congress who view Mueller’s testimony as an opportunity to conclusively show Trump’s guilt will be disappointed as much as those Republican members who think Mueller’s testimony will fully exonerate Trump. In truth, his testimony represents a historically unique opportunity to demonstrate for the American people how a republic can properly function as well as show those who support the move how to muster the necessary political will to commence an impeachment inquiry.

To accomplish this, the Democratic members must understand the difference between questions asked in direct examination and questions asked in cross-examination. The former will work wonders with Mueller while the latter are doomed to failure.

The basic distinction between direct examination questions and cross-examination questions is that direct examination questions consist of who, what, where, when and why. They seek explanation. On the other hand, cross-examination questions start with assumptions (“isn’t it true that …”) and therefore seek agreement.

Mueller is a former prosecutor, and prosecutors are most familiar with direct examination questions because that’s what they base their cases on and how they meet their burden of proof. He will not like cross-exam questions meant to get him to agree with some assertion.

Republican members foolish enough to ask Mueller the question, “Isn’t it true that your report fully exonerated the President?” will get absolutely nowhere. Similarly, Democratic members asking questions such as, “Isn’t it true that you found evidence that the President obstructed justice?” will find themselves frustrated by Mueller’s reticence and squander their chances.

Democrats can elicit everything they need from Mueller in only three direct examination questions accompanied by follow-up. The three questions are:

1. Explain your view of whether a sitting President of the United States can be indicted.

2. Explain why you could not say that the President did not commit a crime.

3. Explain the difference between finding evidence of Trump and his associates having contacts with Russia and finding sufficient evidence to charge the President with crimes.

These three questions are quite straightforward, but it will be the quality of the follow-up questions that determine whether they yield gold. Here is the key to asking high-yield follow-up questions of Mueller: Seek further explanations, not agreement with assumptions. For example, a good follow-up question would be, “Why did you investigate the circumstances of the Trump Tower meeting?’ and “Why were those circumstances significant to your investigation?”

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    Robert Mueller’s disciplined silence and taciturn demeanor render him a kind of tabula rasa upon which people project their views of the Trump presidency. For his upcoming testimony to be more than a reflection of warring passions, the questioners must be wiser and greater than their politics.