Why it's a mistake to be a-waitin' "the" Mueller Report (and why you should instead focus on two other reports) - Just Security

Why it's a mistake to be a-waitin' "the" Mueller Report (and why you should instead focus on two other reports) - Just Security: OLC’s governing view of the constitutionality of a grand jury indictment of a sitting president therefore doesn't stand in the way of DOJ providing a comprehensive account to Congress and the public of the facts uncovered in the Russia investigation.
by Mary Lederman (Georgetown Law School)

Last Thursday, the House of Representatives passed a resolution, by a resounding vote of 420-0, calling for Robert Mueller’s Section 600.8(c) report explaining his prosecution and declination decisions—a report he’s required to submit to Attorney General Barr at the “conclusion of [his] work”—to be released to Congress in “full” and to be released to the public “except to the extent the public disclosure of any portion thereof is expressly prohibited by law.”

In a new Op-Ed in the Washington Post I explain that this so-called “Mueller Report” probably won’t see the light of day . . . but that that’s not as troubling as it might appear at first glance, for two reasons.

First, we’ll already know most of what’s in Mueller’s report to Barr, because the information is already right out there in the public record, in the many grand jury indictments and other court filings that already are, or soon will be, widely available.  The only substantive parts of the report that won’t be transparent, then, are Mueller’s explanations of why he chose not to seek indictments of others — possibly including the President.

Second, Mueller’s report to Barr is only one of three or more “reports” that ought to emerge when the Russia investigation ends.  And at least two of those other reports, which will be submitted to Congress and parts of which may well become public, are likely to be far more revealing and more significant than the so-called “Mueller Report”:

(i)  Barr’s own Section 600.9(a)(3) notification to the judiciary committees—which presumably Mueller will have drafted in large part—can be, and should be, a comprehensive account of the Russia investigation, consistent with Barr’s promise to senators in connection with his confirmation hearing that because “it is very important that the public and Congress be informed of the results of the Special Counsel’s work . . . my goal will be to provide as much transparency as I can consistent with the law.”  That report might well reveal a great deal of factual information about President Trump’s actions involving Russia.  We should not expect it, however, to include Mueller’s assessment about whether there are grounds to ask a grand jury to bring criminal charges against Trump after he leaves office, nor to offer any conclusions about whether Trump’s conduct did or did not satisfy the elements of any particular criminal offenses.  Accordingly, as long as Trump is in office it will be up to the committees themselves—and Congress as a whole—to (in the words of the Jaworski road map) “determine what action may be warranted . . . by [the] evidence” presented in Barr’s notification.

(ii) It’s likely, however, that the most important “report” of them all will be the briefing that DOJ must provide to the congressional intelligence committees conveying the results of the counterintelligence investigation Mueller has superintended.  In order to comply with the requirement of keeping those committees “fully and currently informed” of the results of the investigation, that briefing—which will probably include at least some written document—should include Mueller’s assessment, if any, about whether, how and to what extent Trump is compromised or is otherwise unable to perform his constitutional duties on behalf of the nation when it comes to the Russian threat to our electoral system.  Does Trump have financial obligations to Russian interests?  Was he — and does he continue to be —motivated by the prospects of a Moscow Trump Tower?  Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence?  Or is there a more benign explanation for Trump’s otherwise inexplicable conduct regarding Russia and Putin?  The counterintelligence investigation’s answers to these and similar questions — especially its assessment, if any, of the President’s current capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s conduct in 2016-2017 violated any particular criminal statutes.

Of course, the FBI and the intelligence committees rarely disclose the results of counterintelligence investigations to the public, for obvious reasons:  In the ordinary case, much of the information is classified because it could reveal sensitive sources or methods and because there’s an interest in not revealing to the foreign subjects of the investigation what our government has learned about their activities.  This is far from an ordinary case, however.  Congress and the public have a critical need to know whether and to what extent the president is compromised and whether he’s fit to respond to the Russian threat without fear or favor.  It’s therefore safe to assume Mueller will try to convey such information to the committees in a form that permits the greatest possible dissemination consistent with national security imperatives.  At which point it will primarily be the responsibility of the chairs of the committees — Richard Burr (R-N.C.) in the Senate and Adam B. Schiff (D-Calif.) in the House — to assess how much of the information they can and should share with the rest of Congress and the public.

In the remainder of this post I’ll try to fill in some of the legal details that space constraints precluded me from including in the Op-Ed, in the context of answering some of the questions the Op-Ed naturally raises.