Special Counsel Robert Mueller files his report with DOJ

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Curious. Special Counsel Robert Mueller filed his long-awaited report on a Friday at the close of business — the proverbial Friday night news dump — when much of the nation was transfixed with the NCAA mens basketball tournament, aka March Madness.

Curiouser still, the Department of Justice announced that Mueller won’t recommend further Russia probe indictments.

Special Counsel Robert Mueller’s remit was a narrow one: The Special Counsel was authorized to conduct the investigation of:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 C.F.R. § 600.4(a).

“If the Special Counsel believes it is necessary and appropriate, the Special Counsel is
authorized to prosecute federal crimes arising from the investigation of these matters.”

Presumably the “any matters that arose or may arise directly from the investigation” included obstruction of justice. Donald Trump has clearly engaged in obstruction of justice, he has done so in plain sight and done so publicly. The lack of an indictment for obstruction of justice may be the result of Robert Mueller following the long-standing (but misguided) DOJ policy that sitting presidents cannot be indicted. Hopefully this is explained in his report.

There are actually two levels of the Mueller investigation. First is the criminal investigation outlined above, which the media has largely focused on. There appeared to be three tranches to this criminal investigation: explain what the Russians did to interfere in the 2016 election, who were the Russians involved, and who were the “individuals associated with the campaign of President Donald Trump” involved. The Special Counsel’s “speaking indictments” filed in this probe answered the first two tranches, but Mueller’s failure to recommend indictments for the third tranche of the investigation leaves open to speculation a large number of unanswered questions that may, or may not be explained in the Special Counsel’s report. We’ll have to wait and see.

The second level of the investigation is a counterintelligence investigation, which is basically “hunting spies” or “compromised” individuals. This does not typically result in prosecutions in order to protect intelligence sources and methods. Only where highly classified information has been exchanged is there a rare prosecution for espionage. Counterintelligence investigations typically result in the revocation of a security clearance and the removal of the compromised individual from their government position. It goes without saying that this cannot be done with the duly elected president of the United States.  Only Congress has the authority to do that (and Republicans in Congress are unlikely to do it no matter how compromised Donald Trump my be). The media has focused far less on this aspect of the Mueller investigation.

It is also important to keep in mind that there are a large number of investigations outside of the remit of Special Counsel Robert Mueller’s narrow investigation that are being pursued by the Southern District of New York and the Eastern District of Virginia, as well as the state of New York and the Congress. A Complete Guide To All 17 (Known) Trump And Russia Investigations. Robert Mueller’s investigation is not the end, it is the beginning of the end.

So with that explanation, let’s go to the Washington Post. Mueller submits final report without further indictments:

Special counsel Robert S. Mueller III submitted a long-awaited report to Attorney General William P. Barr on Friday, marking the end of his investigation into Russian interference in the 2016 election and possible obstruction of justice by President Trump.

The submission of Mueller’s report ends his closely watched inquiry — a case that has engulfed the Trump administration since its inception, leading to criminal charges against 34 people, including six former Trump associates and advisers.

A senior Justice Department official said the special counsel has not recommended any further indictments — a revelation that buoyed Trump’s supporters, even as other Trump-related investigations continue in other parts of the Justice Department. It is also unclear whether a Mueller report that does not result in additional charges could still hurt the president politically.

Justice Department officials notified Congress late Friday that they had received Mueller’s report, but they did not describe its contents. Barr is expected to summarize the findings for lawmakers as early as this weekend.

* * *

White House press secretary Sarah Sanders said that the next steps “are up to Attorney General Barr, and we look forward to the process taking its course. The White House has not received or been briefed on the special counsel’s report.”

In a letter to the leaders of the House and Senate judiciary committees, Barr wrote that Mueller “has concluded his investigation of Russian interference in the 2016 election and related matters.”

Barr wrote that Mueller submitted a report to him explaining his prosecution decisions. The attorney general told lawmakers he was reviewing the report and anticipated that “I may be in a position to advise you of the Special Counsel’s principal conclusions as soon as this weekend.”

The attorney general wrote he would consult with Mueller and Deputy Attorney General Rod J. Rosenstein “to determine what other information from the report can be released to Congress and the public consistent with the law, including the Special Counsel regulations, and the Department’s long-standing practices and policies.”

Barr said there were no instances in the course of the investigation in which any of Mueller’s decisions were vetoed by his superiors at the Justice Department.

“I remain committed to as much transparency as possible, and I will keep you informed as to the status of my review,” Barr wrote.

* * *

Even with the report’s filing, Mueller is expected to retain his role as special counsel for a wind-down period, though it is unclear how long that may last, officials said. A small number of his staffers will remain in the office to help shut down the operations.

“The investigation is complete,” Kupec said.

According to Justice Department regulations, the special counsel’s report should explain Mueller’s decisions — who was charged, who was investigated but not charged, and why.

It is unclear how much of what Mueller found will be disclosed in Barr’s summary for Congress. Congressional Democrats, anticipating an incomplete accounting, have already sent extensive requests to the Justice Department for documents that would spell out what Mueller discovered.

At this point, the media and the public remain in the dark. As Jeff Greenfield explains, Mueller’s Done, And We Know Nothing. But We Know This About Trump.

Former assistant attorney General Neal Katyal, says I wrote the special counsel rules. The attorney general can — and should — release the Mueller report.

The public has every right to see Robert S. Mueller III’s conclusions. Absolutely nothing in the law or the regulations prevents the report from becoming public. Indeed, the relevant sources of law give Attorney General P. William Barr all the latitude in the world to make it public.

Those regulations, which I had the privilege of drafting in 1998 and 1999 as a young Justice Department lawyer, require three types of reports. First, the special counsel must give the attorney general “Urgent Reports” during the course of an investigation regarding things such as proposed indictments. Second, the special counsel must provide a report to the attorney general at the end of the investigation, which Mueller delivered on Friday. And third, the attorney general must furnish Congress with a report containing “an explanation for each action … upon conclusion of the Special Counsel’s investigation.”

The regulations anticipated there would be differences among these three. Generally speaking, the final report the special counsel gives to the attorney general would be “confidential,” and the report the attorney general gives to Congress would be “brief.”

But the mentions of “brief” and “confidential” in the regulations and accompanying commentary were just general guidelines for each type of report. The text of the regulations never required the attorney general’s report to Congress to be short or nonpublic. Rather, that text expressly included a key provision saying the “Attorney General may determine that public release of these reports would be in the public interest,” even if the public release may deviate from ordinary Justice Department protocols.

Former Deputy Assistant Attorney General Harry Litman adds, The Mueller report will be released, one way or the other:

There is some understandable concern that the now-delivered report by special counsel Robert S. Mueller III consists of only the sketchiest information that will not begin to describe to the American people the results of his two-year probe.

* * *

But [Barr’s] letter hints at a more detailed set of conclusions when it begins that Mueller has concluded his investigation of Russian interference in the 2016 election. If Mueller’s work is truly done, there are good reasons to conclude that Mueller has passed along, or will before exiting the building, a far more detailed report to Barr.

First, and crucially, Mueller’s core mission is defined as conducting a counterintelligence investigation that we know began in early 2017, including any links or coordination between the Russian government and Donald Trump’s presidential campaign. That’s his first job; prosecuting the guilty comes second.

Any adequate report of Mueller’s investigation, therefore, should include far more than just who he decided to prosecute or not, as mentioned in the regulations.

Mueller’s deputy Andrew Weissmann provided a confirmation of this focus in a closed-door hearing in the Paul Manafort case. Weissmann told the judgethat an August 2016 meeting between Manafort, Trump’s campaign chairman, and Russian operative Konstantin Kilimnik “goes, I think, very much to the heart of what the special counsel’s office is investigating.”

That admission clearly is a reminder that Mueller’s focus has been on the possible links between the Trump campaign and Russia, a subject both far larger and fundamentally different from identifying criminal violations.

* * *

And on the topic of the broader public interest, that too should guide the actions of Barr, whose judgment will go a long way toward deciding what information is shared with the public and what is kept secret. Starting tomorrow, there will be an immediate tug of war with Congress for this far broader body of information.

It is worth noting that the department has often issued concluding public reports in civil rights investigations that go well beyond charging decisions. And most pertinently, in Watergate, the department special prosecutor turned over to Congress an extensive “road map” of his investigation that became the basis for Congress’s own impeachment inquiry.

A critical point is the department’s policy against indicting a sitting president, which Barr indicated at his confirmation hearings he would retain. It would be outrageous if the president were able to exploit this policy as both sword and shield: The department cannot decline to bring charges against him because of the policy but then at the same time decline to describe his conduct on the ground that he wasn’t charged.

In his confirmation hearing, Barr pledged to provide transparency to the extent permitted by law. His letter Friday suggests that he will do so with respect to Mueller’s main prosecutorial decisions. The more important topic to which we will now move is the wealth of information Mueller developed in his counterintelligence investigation.

We are all now watching and waiting to see just how transparent Attorney General Willam Barr is going to be with Robert Mueller’s report.




7 COMMENTS

  1. P.S. I doubt there are grounds to indict President Trump and that he was not indicted because he is a sitting president. If so, there would be other indictments of those who helped him. But there aren’t any indictments, which suggests the whole two-year saga was a big “nothing burger.”
    But we will see soon.

    • “Individual 1” is already an unindicted co-conspirator in Michael Cohen’s case for that reason, and the pleadings in Cohen’s case indicate that he is still a cooperating witness in the investigation of a campaign finance conspiracy. SDNY is not constrained by Mueller’s narrow investigation remit.

      • I was referring to what this investigation was supposed to be about, collusion with Russia. And again, if there was such collusion, where are the indictments of others?

        • Do you know what is in Mueller’s report? I think not. You are being presumptuous. Congress is going to subpoena the full report and the underlying evidence obtained by Mueller, and will subpoena Mueller and Barr to testify about it.

          Congress can also do what occurred in Watergate, have the grand jury prepare a “Report and Recommendation” from the grand jury itself combined with the “Road Map” of the underlying evidence, and transmit it to Congress with the approval of the presiding grand jury judge. The Watergate Road Map: What It Says and What It Suggests for Mueller, https://www.lawfareblog.com/watergate-road-map-what-it-says-and-what-it-suggests-mueller

          If Trump is innocent and exonerated as you seem to believe, he should be calling for the full report and underlying evidence to be released, instead of having done everything in his power for the past two years to discredit the Special Counsel’s investigation. That speaks volumes.

          Finally, while some actions may not be a crime, Trump and his family may be so compromised by multiple contacts with Russia that they present a national security risk. Trump kissing Putin’s ass at Helsinki was a flashing red light emergency and a national disgrace. The fact that this does not concern you also speaks volumes about Republicans’ willingness to disregard America’s national security in their personality cult of Donald Trump.

      • Deroy Murdock in an opinion piece on Fox News’ website comments on your theory, assuming you have not already give up on collusion and moved on:

        “This theory rests upon the notion that Trump and Russia conspired to steal the White House from the Duchess of Chappaqua, to whom it was bequeathed by royal writ, as everyone knows. So, this collective hallucination goes, Trump and Putin swiped the Oval Office without the involvement of any other U.S. person. Trump supposedly managed this enormous accomplishment with the assistance of Russians but without the knowledge or cooperation of anyone else on his campaign, in the Republican National Committee, or among GOP offices from Nevada to New Hampshire. This would be the only justification for Mueller leaving Trump uncharged (“Let the House do it!”) while issuing zero collusion indictments for any American non-president.”

  2. Best description I have found of Barr’s options are at:
    https://www.theatlantic.com/ideas/archive/2019/03/ken-starr-muellers-report-shouldnt-go-congress/585577/

    Some interesting comments from Starr:

    1. “But this unusual situation does not somehow work a repeal of well-established traditions of confidentiality. If the House wants to consider impeachment, it needs to do its own work. It would be odd in the extreme to ask, in effect, the executive branch to become a tool of the legislative branch in a death-struggle with the only individual identified in the Constitution as the possessor and wielder of executive power: the president. That was the old way, under the old statute. Congress did away with that approach, and wisely so.”

    2.”This is not to say that Barr’s hands are tied. Mueller is in regulatory handcuffs, but Barr—as the attorney general—still maintains a goodly amount of discretion as to what he will choose to report to Congress. In his exercise of discretion, Barr may well opt in favor of transparency, while complying with statutory obligations not to reveal grand-jury information.”

    3.”The regulations now governing Mueller were meant to restore the traditions of the Department of Justice, which were broken when Congress enacted the special-prosecutor (or, later, independent-counsel) provisions of the Ethics in Government Act of 1978. Under that regime, reports became the warp and woof of the independent counsel’s work. Most provocatively, the statute required an independent counsel to refer matters to the House of Representatives for possible impeachment when a surprisingly low threshold of evidence was in hand—“substantial and credible information that an impeachable offense may have been committed.” I followed that requirement when I produced the so-called Starr Report, which then took on a controversial life of its own in the House in the dramatic months of 1998.

    The architects of the current regulations saw all this unfold. Not surprisingly, the drafters of the new regime—the one under which Mueller operates—set themselves firmly against the revolutionary principle of factually rich prosecutorial reports. It might seem strange for me to say, but they were right to do so. The message emanating from the new regulations, issued by then–Attorney General Janet Reno, was this: Special counsel, do your job, and then inform the attorney general—in confidence—of the reasons underlying your decisions to prosecute and your determinations not to seek a prosecution (“declinations”).”

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