A Rough Week for President Trump

With the number of legal proceedings and investigations swirling around president Trump, it’s easy to lose track of developments. But last week saw an extraordinary string of bad news for the president on several different fronts. The president should be riding high this week, with the Republican party nominating him for a second term. But last week was pretty rough.

Photo of president Trump

1. The New York District Attorney Case

As I wrote in my most recent post, Manhattan District Attorney Cyrus Vance, Jr. has been engaged in a year-long battle to obtain president Trump’s tax returns and other financial records. Vance’s office is overseeing a New York state grand jury investigation into potential financial crimes by the Trump Organization and unidentified individuals, likely including Trump himself.

As part of the grand jury investigation, in August of 2019 Vance subpoenaed the president’s tax returns and other financial records from his personal accountant, Mazars LLP. Although this is a state grand jury proceeding, in September 2019 the president filed a lawsuit in federal district court arguing that he was absolutely immune from state criminal process while in office. The U.S. Supreme Court rejected that claim last month. Trump then filed a new complaint, alleging that the grand jury subpoena is overbroad and was issued in bad faith. Vance moved to dismiss that complaint.

The lawsuit by Trump seeks to do an end run around the secrecy protections that surround grand jury proceedings. In an ordinary case, the recipient of a grand jury subpoena is not entitled to go to court and demand details about the scope of the investigation. He may argue the subpoena is overbroad, unduly burdensome, or is otherwise improper. But he may not demand to know the inner workings of the grand jury and the details of what it is investigating. Trump was essentially using his civil lawsuit to seek discovery about the investigation and circumvent these rules.

Trump’s Complaint is Dismissed

In my earlier post, I noted the uphill battle Trump faced and argued Vance was likely to prevail. And last week, the court granted Vance’s motion to dismiss and threw out Trump’s complaint. In a 103-page opinion, Judge Victor Marrero noted that the lesson from the recent Supreme Court decision is clear:

Absent evidence that compliance with a grand jury subpoena would improperly influence or impede the executive branch’s performance of constitutional duties, the President is entitled to claim no greater shield from judicial process than any other person.

The president had not even attempted to argue that the subpoena – directed to an outside third party, not to him – would improperly interfere with his official duties. And because the judge found the subpoena was not overbroad or issued in bad faith, he ruled the president was not entitled to relief and that the grand jury investigation should be allowed to proceed.

Trump has appealed the decision.  As of this writing, the district court has denied the president’s request for a stay pending appeal, and the Second Circuit Court of Appeals will hear arguments on Trump’s motion for a stay on September 1. If the Second Circuit denies the stay, Trump could seek intervention by the U.S. Supreme Court. But grant of a stay by any court seems very unlikely. And in the absence of a stay, Mazars has indicated it will comply with the subpoena. [Update: on September 1 the Second Circuit, in blatant disregard of my prediction, did grant a stay. Arguments on the merits will be heard on September 25.]

In sum, Trump is nearly out of legal options here. He’s managed to delay things for a year, but the New York state grand jury should have his tax returns before long. Grand jury secrecy means they will not necessarily be made public any time soon, if at all. But the possibility of state criminal charges poses a unique threat to Trump: although Attorney General William Barr has shown a remarkably corrupt willingness to protect the president, Barr has no control over a state prosecutor. And even if Trump could pardon himself on his way out of office (an unsettled question), no president can issue a pardon for state charges.  This is an area where Trump’s willingness to abuse the power of his office cannot help him.

Steve Bannon
Steve Bannon

2. The Steve Bannon Indictment

On the same day the judge dismissed Trump’s lawsuit over the Vance subpoena, there was another major legal development with potential implications for the president: federal prosecutors in the Southern District of New York indicted Steve Bannon, Trump’s former campaign CEO and Senior White House advisor, and three other men for fraud and money laundering. The indictment doesn’t implicate Trump directly. But it adds to a long list of people formerly in the president’s inner circle – including former campaign chair Paul Manafort, deputy campaign chair Rick Gates, national security advisor Michael Flynn, and political advisor Roger Stone – who have faced criminal charges. For a president who claims to hire “only the best people,” it is, at a minimum, not a good look.

The Bannon indictment lays out a relatively straightforward fraud scheme. It was spearheaded by Brian Kolfage, an Air Force veteran and Arizona border wall activist. According to the indictment, in December 2018 Kolfage launched an online fundraising campaign called “We the People Build the Wall.” The claimed purpose was to raise money to donate to the U.S. government to help fund the construction of a border wall between the United States and Mexico. The initiative apparently arose after Kolfage was frustrated by the Trump administration’s inability to get significant funding for the wall from Congress. His solution: raise the money from individual donors and give it to the government. Kolfage allegedly promised donors that 100% of the donations would go towards building the wall, and that the money would be returned if that was not possible.

The fundraising campaign was a huge success and quickly raised about $20 million. The online fundraising platform then began raising questions about the campaign and whether the money could actually be donated to the U.S. government as promised. The platform told Kolfage that he had to identify a legitimate, nonprofit organization to receive the funds, or else they would be returned to the donors.

That’s where Steve Bannon allegedly came in. Shortly after he was contacted by Kolfage and became involved, Bannon and the other defendants created a new tax-exempt organization, “We Build the Wall, Inc.”, to receive the donated funds. They then allegedly set about persuading the online site, and the original donors, that the funds should be transferred to this new nonprofit. Among other things, they repeatedly claimed that 100% of the funds would go towards the building the wall and that Kolfage would not earn a penny. They also claimed the new nonprofit had guidelines and oversight in place that would prevent any of the funds from being misappropriated. In reliance on those representations, most donors agreed that their original donations could be transferred to the new nonprofit. The defendants solicited new donations as well, in the end raising a total of more than $25 million.

The indictment alleges that the defendants misappropriated hundreds of thousands of dollars of the donated funds to their own use. Kolfage allegedly received more than $350,000 from the organization, including a $20,000 a month salary despite repeated promises that he would take no salary from the venture. Bannon allegedly received more than $1 million. The indictment charges that the defendants disguised these payments by running them through various other nonprofit organizations and shell companies, and by falsely characterizing them as payments to vendors. Kolfage allegedly used the misappropriated funds for personal expenses such as a boat, home renovations, a luxury SUV, plastic surgery, and personal tax payments. Bannon and the other defendants allegedly used the money for travel, hotels, consumer goods, and personal credit card payments.

The indictment charges the defendants with one count of conspiracy to commit wire fraud and one count of conspiracy to commit money laundering. Both of those crimes carry a maximum penalty of twenty years in prison. If the allegations of the indictment are true, there are no obvious defenses and it looks like a pretty tough case for Bannon and the other defendants.

William Barr
Attorney General William Barr

Why Did Barr Let It Happen?

One interesting aspect of this case is that William Barr’s Justice Department allowed it to proceed. Barr has shown little reluctance about intervening in cases that land close to the White House, including the prosecutions of Roger Stone and Michael Flynn. So why would he green light a prosecution so clearly embarrassing to the president shortly before the election?

There are a few different possibilities. One is that the Southern District of New York “went rogue” and brought the case without informing Barr. This is not impossible – there’s no law that requires the U.S. Attorney to notify the Attorney General about such a case. And the SDNY is famously independent – hence its nickname, the “Sovereign District of New York.” The fact that United States Postal Inspectors were the lead investigative agents on the case, not the FBI (which is part of Barr’s DOJ), might lend some credence to the idea that SDNY was keeping the case under wraps to avoid any interference. But on balance I find this a little hard to believe.

Another possible explanation is that Barr’s efforts to tamp down the case simply failed. When the indictment came down, many people recalled Barr’s recent effort to fire the U.S. Attorney for the Southern District of New York, Geoff Berman. You may recall the odd episode where Barr issued a press release saying Berman was stepping down, which Berman promptly denied. When he did so, Berman expressed concern about ensuring the integrity of ongoing investigations within his office.

Barr had planned to replace Berman temporarily with the New Jersey U.S. Attorney, who is close to Barr, and ultimately with Jay Clayton, the head of the SEC.  They are Trump loyalists who probably could have been counted on to at least slow-walk the Bannon case until after the election, if not kill it entirely. But Berman’s refusal to go quietly ultimately ended in a deal where Barr agreed that Berman’s chief deputy, Audrey Strauss, would step in as the acting U.S. Attorney if Berman left.  And Strauss, a respected career prosecutor, is not on team Trump.

It’s true that Barr still had the power to kill the case. But it’s pretty difficult to do that against the recommendation of an independent, career U.S. attorney. Barr’s intervention would almost certainly have leaked, and that could have ended up looking even worse for the president than the indictment. At least Trump can distance himself from Bannon’s fraud; he could not have readily distanced himself from Barr’s torpedoing the case. In short, perhaps after Barr’s attempt to install “his guy” at the SDNY failed, allowing this indictment to go forward ended up being his best option.

In fairness I should mention a third possibility: perhaps Barr was just playing it straight, not interfering, and letting the chips fall where they may. Perhaps – but his track record does not entitle him to the benefit of the doubt. And there has never been a satisfactory explanation for the immediate need to remove Berman, rather than waiting for his replacement to be confirmed.

What Does the Bannon Case Mean for Trump?

As I mentioned, the case against Bannon does not directly implicate the president. But Bannon was part of Trump’s inner circle for some time. It’s possible he has information relevant to other ongoing investigations – some of which are not public and may be located in the SDNY. If so, Bannon could agree to turn on Trump and cooperate in exchange for leniency. It’s also possible, of course, that Trump could pardon Bannon – particularly after the election – in the hope that Bannon would then keep his mouth shut out of gratitude. But at this point we can only speculate.

In any event, the developments in Bannon’s case should be interesting. Absent a pardon, some kind of cooperation, or other unexpected development, it looks like there is a good chance he will be going to jail.

cover page of Senate Intelligence Committee report

3. The Senate Intelligence Committee Report

Also last week, the Senate Intelligence Committee released Volume 5 of its report of its investigation into Russian interference in the 2016 election. The report is notable not so much for any startling new revelations but because it was issued by a Senate Committee on a bipartisan basis – and that Committee is controlled by Republicans.

The Senate report confirms much of what was already in the Mueller report, although it goes into far greater detail, weighing in at nearly 1000 pages. It devotes more than 100 pages just to discussing Paul Manafort and his ties to various Russian actors, including Russian intelligence officers. Another 100+ pages are devoted to discussing the infamous Trump Tower meeting in June 2016 between members of the Trump campaign and Russians who had promised damaging information about candidate Hillary Clinton. Other people and incidents, including George Papadopoulos, Carter Page, Roger Stone, and Trump’s concealment of his efforts to build a tower in Moscow, also receive extensive discussion.

The detailed information about Manafort and his Russian ties is perhaps the most damning, although again most of it is not new. The report details Manafort’s long-time ties to Konstantin Kilimnik, who is described as a Russian intelligence officer. Among other things, while he was Trump’s campaign chairman, Manafort met with Kilimnik and shared confidential internal Trump campaign polling data. The Committee, like Mueller, could not determine exactly why Manafort shared this information. But Kilimnik was with Russian intelligence and this took place at the same time Russia intelligence officers were actively engaged in a social media campaign to influence the election. Such internal polling data would undoubtedly be extremely useful in determining where to target such social media efforts.

Two conclusions in the report deserve to be highlighted.  First, when it comes to Manafort:

The Committee found that Manafort’s presence on the Campaign and proximity to Trump created opportunities for Russian intelligence services to exert influence over, and acquire confidential information on, the Trump Campaign. Taken as a whole, Manafort’s high level access and willingness to share information with individuals closely affiliated with the Russian intelligence services . . . represented a grave counterintelligence threat.  

Second, when it came to the Committee’s ability to investigate and obtain information from the White House, it noted that the president had made expansive, unwarranted assertions of executive privilege:

The Committee did not anticipate . . . the multitude of novel and unprecedented potential executive privilege claims from the [White House Counsel’s Office] on behalf of members of President-elect Trump’s Transition Team and the Transition itself, for communications before Trump took office. The Committee was surprised by these assertions because they were made inconsistently and because they have no basis in law.

In short, the Republican-led committee agrees the Russia investigation was not a “hoax;” actions of the Trump campaign represented a “grave counterintelligence threat.” And the White House, following a pattern it has exhibited in many other investigations (including the Mueller investigation and the impeachment proceedings) essentially stonewalled the investigation, making it impossible fully to determine what had happened.

Trump and Putin shaking hands

But Was it Collusion?

After 900-plus pages of bipartisan factual analysis, the report concludes with brief statements of “additional views” by groups of Republican and Democratic Senators. The Republicans stated (in bold italics, to make sure you don’t miss it), “the Committee found no evidence that then-candidate Donald Trump or his campaign colluded with the Russian government in its efforts to meddle in the election.”  The Democratic Senators disagreed, concluding that “this is what collusion looks like.”  In other words, the two political parties largely agree on the facts, but disagree over whether they prove “collusion.”

This is a silly, semantic debate. As I’ve argued elsewhere, and as Mueller also noted in his report, collusion is not a legal term. You can define it however you like. If you equate the term collusion with a criminal conspiracy, then it’s true that Mueller – and the Committee – did not find sufficient evidence to prove such a conspiracy beyond a reasonable doubt. On the other hand, if you define collusion as working cooperatively to achieve a common goal,  then there is evidence of collusion all over the place. As the Democrats noted in their separate statement:

The Committee’s Report clearly shows that Trump and his Campaign were not mere bystanders in this attack – they were active participants. They coordinated their activities with the releases of the hacked Russian data, magnified the effects of a known Russian campaign, and welcomed the mutual benefit from the Russian activity.

The bottom line is that a Republican-led Senate Committee has found that the Trump campaign had extensive contacts with Russian individuals including Russian intelligence officers, shared confidential information with them, welcomed Russian efforts to help Trump win the election, built a campaign and messaging strategy around the release of the Democratic emails stolen by Russia, and then failed to cooperate fully in the Senate investigation of those activities.

That should be – or should have been — a major scandal. But again, none of it is really new, and most of it was discussed in Volume I of the Mueller report. The addition of this Senate report is unlikely to have much of an impact on a public that has already largely absorbed these facts and formed its opinions.

But if nothing else, perhaps the bipartisan report will help to undermine Trump’s constant refrain about the “Russia hoax” and the deep state “witch hunt.” Even his own party agrees that the Russia allegations were not a hoax; there was extensive evidence of the Trump campaign’s ties to Russia and that those ties posed a grave threat. There was a more than sufficient basis for the FBI to investigate. The fact that no provable criminal charges resulted does not mean the investigation itself was unwarranted – particularly considering how difficult the White House and others made it for investigators to get the full story. And the fact that the Trump campaign’s conduct ultimately may not have been criminal does not mean that it was okay.

Stephanie Clifford, a/k/a Stormy Daniels

Postscript: More Stormy Weather

I’d be remiss if I didn’t mention a final legal development last week: we learned on Friday that Trump was recently ordered to pay more than $44,000 in legal fees to adult-film actress Stephanie Clifford, known as Stormy Daniels. The fees were from a lawsuit she filed over a non-disclosure agreement with Trump. She signed the agreement in 2016, accepting $130,000 in exchange for her promise not to discuss an affair she had with Trump from 2006-2007.  A California judge agreed that Daniels had prevailed in her lawsuit to void the agreement, and ordered Trump to pay her attorney’s fees.  

One of the charges that Trump’s personal attorney Michael Cohen pleaded guilty to was a campaign finance charge related to this “hush money” payment to Clifford, which he said he made at Trump’s direction.  Possible state financial crimes related to this hush money payment were part of the original basis for Vance’s grand jury investigation in New York. Thus, in the span of a few days last week, Trump’s legal problems came full circle.

All in all, a really bad week.

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Why Congress Shouldn’t Wait for the Mueller Report

At the Senate confirmation hearings for Attorney General nominee William Barr, one question predominated: will the Mueller report be made public? Democratic Senators and pundits expressed emotions ranging from concern to outrage over the fact that Barr would not pledge to release any report from the Special Counsel. Senator Diane Feinstein said she would not vote to confirm Barr unless he promised to make Mueller’s report public. Other argued that Barr would likely “bury” Mueller’s report if he got the job.

I wrote this piece in the Washington Post arguing that Barr was right about the relevant regulations and that there is no reason to believe Mueller’s report necessarily can or will be released. The, shall we say, spirited response to that article convinced me that the topic deserves a more in-depth discussion.

For months everyone has spoken reverently about a supposed upcoming report from Mueller that’s going to answer all of our questions. Congress routinely suggests it wants to wait for the Mueller report before deciding what to do. But it’s a mistake for the public, and for Congress, to leave so much riding on the Mueller investigation.

Congress shouldn’t wait for the Mueller report. We don’t know when it’s coming, we don’t know how much Congress will actually be able to see, and it’s not going to cover the full range of Trump’s wrongdoing. Congress needs to step up and fulfill its role as a co-equal branch of government by holding multiple oversight hearings and creating a public record of all of Trump’s misdeeds. And it should start now.

Independent Counsel Kenneth Starr

Independent Counsel Kenneth Starr

Mueller Is Not Ken Starr

Part of the reason many have been expecting Mueller to write the definitive report addressing all of Trump’s wrongdoing is that the last time we had an investigation of a sitting president that’s exactly what we got. Independent Counsel Ken Starr wrote a book-length report going into graphic detail about Bill Clinton’s relationship with Monica Lewinsky and the attempts to cover it up. The report became a best-seller – you can still buy it on Amazon.

But Starr was operating under a law that no longer exists. The Independent Counsel law was part of the Ethics in Government Act passed in 1978 as a post-Watergate reform. It authorized the appointment of an Independent Counsel to investigate alleged wrongdoing by certain high-level executive branch officials. More than a dozen ICs were named between 1978 and 1999. The two best-known were Lawrence Walsh, who investigated the Iran-Contra affair during the Reagan administration, and Ken Starr, who began by investigating the Whitewater real estate deal and ended up investigating the Clinton-Lewinsky affair.

The Independent Counsels were granted all of the investigative and prosecutorial powers of the Department of Justice. And they were truly independent: they did not report to the Attorney General and were not supervised by anyone at DOJ. They were not required to follow DOJ rules and policies. Each IC office was like its own little Department of Justice, conducting its investigation, setting its own rules, and reporting to no one.

The law required an IC to prepare a report to Congress if he or she found any evidence of potentially impeachable conduct. That’s where the lengthy, public Starr report came from. But over time, concern grew about the power of the ICs and the potential for unchecked abuse  — concerns fueled in part by the excesses of Starr’s investigation. Congress decided to let the Independent Counsel act expire in 1999. Few mourned its passing. 

What the Special Counsel Regulations Provide

 The Independent Counsel law was replaced by DOJ regulations providing for the appointment of a Special Counsel in cases where top officials at DOJ might be perceived to have a conflict of interest. These are the regulations pursuant to which Acting Attorney General Rod Rosenstein appointed Special Counsel Bob Mueller. The Special Counsel regulations represent a compromise, creating a system to investigate cases where the impartiality of the DOJ might be questioned but pulling back from some of the perceived extremes of the IC law.

The Special Counsel system differs in significant ways from the old Independent Counsel law:

  • The Special Counsel is not an entirely autonomous investigator but is treated like a United States Attorney. He or she is required to follow DOJ rules and policies and is subject to DOJ discipline for violating them.
  • The Attorney General oversees the Special Counsel’s investigation. Although the SC is not subject to day-to-day supervision, he or she is required to keep the AG informed about the investigation.
  • The Attorney General may request an explanation from the SC for any investigative or prosecutorial action, and may overrule the SC and conclude the action should not be pursued.
  • The SC is not required – or even allowed – to write a report to Congress or for the public. The regulations provide the SC shall provide a “confidential report” to the AG explaining the SC’s prosecution or declination decisions.
  • The AG is required to report to Congress upon the appointment or removal of an SC. At the conclusion of the investigation, the AG is to report to Congress about the investigation, including an explanation for any instances in which the AG overruled a proposed action by the SC.

Although the SC has a good deal of autonomy, the regulations make clear that he functions within the overall DOJ structure and is subject to supervision by the Attorney General. That’s why there was so much concern when Matthew Whitaker took over as acting Attorney General with the power to oversee Mueller’s probe.  It’s also why Senators now are pressing Barr on whether he will allow Mueller to finish his work unimpeded (Barr, who considers Mueller a friend, has pledged to do so).

Most significant for this discussion, there is no provision for Mueller to prepare a report to Congress or any report that might otherwise be made public. His “confidential report” goes only to the Attorney General. The AG must make a report to Congress when Mueller concludes his investigation, but there are no specifics about how detailed that report must be or what form it should take, other than the requirement that the AG explain any instances where he overruled the SC. It’s up to the discretion of the AG to decide whether his own reports to Congress should be released to the public. But there is no mechanism in the regulations for the AG to release the Special Counsel’s report to Congress or to the public. 

Special Counsel Robert S. Mueller, III

Prosecutors Don’t Do Public Reports

 The fact that Mueller is a federal prosecutor and not some kind of public grand inquisitor is often overlooked or misunderstood. But it’s really important, because it dictates what kind of work product Mueller is likely to produce. Prosecutors don’t prepare public reports. Mueller is not supposed to write the definitive full story of all things related to Trump. His job is to investigate specific allegations of criminal activity.

Prosecutors speak to the public through the cases they bring. In February of 2018 Mueller indicted thirteen Russian individuals and three Russian companies for their efforts to sway the 2016 presidential election by using fake social media accounts. Then last July he indicted twelve Russian intelligence agents for a conspiracy to hack into computers to steal Democratic emails. The lengthy indictments effectively served as a report about what Mueller found. If Mueller brings more indictments, much more information could be revealed.

But Mueller could also end up investigating a lot of things that never result in an indictment. He might pursue various allegations and conclude there is not a basis for criminal charges. For a federal prosecutor, there is no vehicle for public disclosure of that kind of information. Just the opposite, in fact – information about cases that are not brought generally is not released to the public.

We should compare Mueller not to Ken Starr but to Patrick Fitzgerald. Fitzgerald was appointed Special Counsel during the George W. Bush administration to investigate the leak of the identity of covert CIA agent Valerie Plame. The two-year investigation ended with the indictment and conviction of vice president Cheney’s chief of staff Scooter Libby for obstruction of justice and related crimes. (Trump recently granted Libby a pardon.) Fitzgerald’s investigation encompassed the conduct of numerous other White House officials, including Karl Rove, Cheney, and possibly the president himself. But Fitzgerald did not write a public report concerning everything he had learned concerning their conduct. He prosecuted the criminal case he found, and that was it. At a press conference announcing the Libby indictment, Fitzgerald was asked if he would be preparing a public report, and responded:

That [independent counsel] statute lapsed. I’m not an independent counsel, and I do not have the authority to write a report, and, frankly, I don’t think I should have that authority. I think we should conduct this like any other criminal investigation: charge someone or be quiet.

Prosecutors do often write internal reports, called declination memos, about cases they decide not to bring, explaining what they found and why they decided not to seek an indictment. I’ve written such memos that ran well over a hundred pages. But those memos are not released to the public. For one thing, they usually contain a lot of information about matters that occurred before the grand jury. All of that information is protected by grand jury secrecy, the federal rule that requires prosecutors and investigators to keep grand jury matters confidential. Particularly in an investigation like Mueller’s, there also may be sensitive information related to national security or intelligence-gathering methods that needs to remain confidential.

Some have argued that if the report is not released, Congress could just subpoena Mueller to testify. But that won’t work, because the same grand jury secrecy rules that would prohibit public release of the report would also prevent him from answering questions about his investigation. Others have suggested Barr could change the DOJ regulations to allow Mueller to write a public report. But he couldn’t do that unilaterally or quickly, and even if the regulations were changed, internal DOJ regulations cannot override the federal rules governing grand jury secrecy.

The bottom line is the special counsel regulations don’t require or even allow Mueller to write any kind of public report. Whatever report he prepares for the Attorney General may need to remain largely confidential. The information in that report could be extremely important, particularly if Mueller concludes the president committed crimes but follows the current DOJ policy that a sitting president can’t be indicted. Then there would be no indictment to inform the public, as there was with the Russian cases. Much of Mueller’s information about alleged criminal acts by the president could remain under wraps if he concludes he can’t bring an indictment.

How Mueller’s Report Might Be Made Public

There will be tremendous interest in whatever report Mueller prepares. And clearly this is a special case; Mueller is not just any prosecutor, and this is not just any investigation. I think there’s a good chance that, one way or another, his report will ultimately end up being made public. This could happen a number of ways:

  • It might end up being leaked to the press by someone and then published, a la the Pentagon Papers — although Mueller’s shop has been pretty leak-proof so far.
  • Congress may be able to subpoena the report, although that could set up a court fight if DOJ tries to withhold it.
  • Barr or someone else could petition a court to allow the release of grand jury material. Criminal Rule 6(e) governing grand jury secrecy does provide for release under certain circumstances, but it’s not clear any of them would apply here.
  • Congress could pass a law allowing the report to be made public – although such a law would have to get through the Republican-controlled Senate and would need a veto-proof majority in both the House and the Senate if we assume Trump would not sign.

DOJ also could release a scrubbed version of the report, with all of the grand jury and national security information redacted. We are used to seeing Mueller’s heavily-redacted court filings, and this would be something similar. But that would omit a great deal of the most useful information and would not be very satisfying.

The bottom line is there’s no guarantee that Mueller’s report will ever be made public, and if it is, much of what’s in it may need to be redacted.

Why It’s a Mistake to Count on Mueller’s Report

Barr has committed to releasing as much information as he can if he is confirmed, even if he does not release Mueller’s actual report. Certainly if Mueller finds evidence of potentially impeachable conduct by the president, it would seem that Barr has an obligation to find a way to notify Congress. And maybe the report itself will ultimately see the light of day. But although any report prepared by Mueller might end up being an important source of information, it’s a mistake to rely on Mueller to answer all of our questions.

First, we don’t know when it’s coming. There’s been a lot of speculation in the media that Mueller may be wrapping up soon and a report may come as early as February. But no one outside of Mueller’s shop really knows, and there are other signs that his investigations are still active and could be continuing for a while. As these cases go, Mueller’s investigation is still relatively young. If Congress waits around for Mueller’s report before deciding what to do, it could end up waiting right through the 2020 election.

In addition, there’s no requirement concerning the level of detail Mueller will provide. He could write an exhaustive, book-length report, or he could write more of a summary that merely contains his conclusions and a brief explanation of his reasoning. Again, his job is not to write a narrative for the public of everything that happened. It’s merely to explain to the AG his reasons for bringing or not bringing particular criminal charges. He could prepare a shorter written summary and then rely on oral briefings to answer any questions or provide more detail to the AG.

Even an exhaustive report of Mueller’s investigation would not give the public or Congress all of the information it needs. Mueller’s charge is to investigate Russian interference in the 2016 election, possible involvement of members of the Trump campaign, and related charges. There are many other allegations about Trump that are not being investigated by Mueller – including the campaign finance violations being investigated in the Southern District of New York that led to the guilty plea of former Trump attorney Michael Cohen; allegations of money laundering and other possible financial crimes that also took place primarily in New York; possible violations of the emoluments clause; possible misuse of funds raised for the inauguration; and more. None of these will likely be covered in any report that Mueller prepares.

Mueller’s report will be limited to allegations of criminality. There is a lot of sleazy, unethical, immoral conduct that is not criminal. Such conduct might be very relevant to political decisions based on Trump’s behavior, including whether to impeach or whether to propose legislation in response. It could also be very important for informing the voting public. But much of that conduct likely will not be included in any report prepared by Mueller.

Congress Needs to Act

The public and Congress have been placing too much weight on the upcoming “Mueller report.” It’s Congress’s job to conduct oversight hearings and provide a full public airing of misconduct by the executive branch. Congress, like a grand jury, has subpoena power to compel the production of documents and the testimony of witnesses. Admittedly its power to hold witnesses in contempt and force compliance is a bit anemic, but the subpoena power is still a powerful investigative tool.

Oversight hearings allow the public to hear and see key witnesses and learn what happened in a way a grand jury investigation cannot. And such hearings can reveal critical information. For example, it was during the Senate Watergate hearings that White House aide Alexander Butterfield first revealed the existence of Nixon’s oval office taping system, the information that ultimately led to Nixon’s downfall.

Some areas of questioning may need to be limited for now, so as not to interfere with Mueller’s investigation. Congress wants to avoid what occurred during the Iran Contra hearings, when Congress granted immunity to Oliver North for his hearing testimony and ended up torpedoing his later criminal conviction. But Congress can work with Mueller’s office to avoid that. There is still plenty to investigate.

Congress shouldn’t rely on Mueller to do their job for them. They shouldn’t delay their own investigations while waiting for a Mueller report that could be many months away, that they ultimately may not see, and that will not address all the relevant areas. We’ve already lost about eighteen months when Congress was controlled by Republicans who had little interest in providing true oversight of the Trump administration. Now that the House is controlled by Democrats, they should not waste any time getting started.

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