Zebley will be there to advise Mueller, but the special counsel will be the only one answering the committee questions, the source said. Democrats only plan to swear in Mueller as a witness.
Mueller made the last-minute request to have his deputy sworn in for Wednesday’s blockbuster hearings before the Judiciary and Intelligence Committees on the Mueller report, in case he needed to help with any questions the special counsel could not fully answer himself, according to a source familiar with the matter.
Republicans on the House Judiciary committee immediately raised concerns that Democrats were making a major, last-minute change to the hearing to have Zebley to testify alongside the special counsel, less 24 hours before the hearings are scheduled to begin.
The prospect that Mueller’s deputy could appear alongside the special counsel is a last-minute twist in one of the most highly anticipated hearings in years. Even if Zebley was there just as a counsel to aid Mueller, it could still change the dynamic of Mueller’s testimony Wednesday before the committees.
The Justice Department objected to Zebley or any others testifying alongside Mueller because it wasn’t authorized, according to a person familiar with the matter. The department’s practice generally precludes line attorneys from testifying.
But the bottom line is that Zebley and many others who were on Mueller’s staff are private citizens now, and the Justice Department cannot do much other than object.
A spokesman for Mueller has not responded to requests for comment.
Democrats have pushed to hear from Zebley along with another Mueller deputy, James Quarles, behind closed doors after Mueller testified. But the Department of Justice also resisted that request, and Attorney General William Barr said he would oppose a subpoena if Congress tried to compel their testimony.
The committee’s top Republican, Rep. Doug Collins of Georgia, accused Democrats of adding “a surprise witness” and said that allowing Zebley to testify would be a “unprecedented decision to allow a witness’s counsel to both advise him privately and simultaneously testify alongside him.”
“If Democrats believe it is the special counsel’s responsibility to testify to his report, they have no ground for outsourcing that duty at the expense of our committee’s integrity,” Collins said in the statement.
Zebley has long been an aide by Mueller’s side, serving Mueller’s chief of staff when he was FBI director. He also worked with Mueller at the private law firm Wilmer Hale before joining his team after Mueller was appointed special counsel.
This story has been updated with additional developments Tuesday.