Yes indeed, and not just in the case where there’s nothing about Russia and collusion to report. David Corn reminds readers at Mother Jones that Robert Mueller’s operating under Department of Justice policies in discussing cases and investigations, which apply even when those cases and investigations conclude. The only report Mueller might produce is a recap of his indictments.
Democrats on the Hill, cable television pundits and analysts, social media influentials, voters, your cousin. They’re all talking about—and hyping—this supposed moment of truth, when the special counsel will reveal all that he and his team have discovered about Moscow’s attack on the 2016 election and interactions between the Trump crew and Russia. Even Trump’s camp has promoted the notion that a dramatic climax in written form is approaching. Rudy Giuliani, President Donald Trump’s lawyer, has repeatedly referred to a Mueller report. And Trump himself has tweeted about a Mueller report, calling it the “Witch Hunt Report,” claiming it will be unfair, and vowing, “We will be doing a major Counter Report to the Mueller Report.”
Here’s the problem with all this speculation and anticipation: Mueller is under no obligation to produce a final report that shares with the public the full breadth of what he has uncovered.
The Justice Department guidelines governing the work of a special counsel do not compel Mueller to compile such a report. They only include one sentence about a report: “At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
Mueller could choose to offer a broader report, though — akin to Ken Starr’s report covering the Monica Lewinsky affair. Don’t be so sure, Corn argues. The law under which Starr conducted his independent counsel probe allowed a great deal of latitude on such actions, but that law no longer exists. The statute under which Mueller’s special-counsel probe operates requires Mueller to follow DoJ policies and practices. And that means there may be little Mueller can say outside of indictments, or perhaps little that can be released by the Attorney General to the public or Congress:
As a Justice Department special counsel, Mueller is presumably working under the department’s rules that do not permit prosecutors to make public the information they gather that is not revealed in the course of a criminal case—that is, material beyond the information presented in an indictment, in court filings, or in evidence submitted during a trial. Federal prosecutors are generally prohibited from exposing what they have learned during an inquiry besides what they openly use in a prosecution. That’s why it was such a big deal in 2016 when former FBI Director James Comey publicly said Hillary Clinton should not be indicted for mishandling emails when she was secretary of state and also discussed details of the FBI’s investigation and criticized Clinton’s actions. Federal prosecutors usually face a stark binary choice: file charges or keep quiet.
There’s another twist to this explanation that Corn doesn’t address. Not only are prosecutors generally barred from revealing information in criminal cases (outside of indictments and trials, of course), but also in counterintelligence cases. The Russia probe began as a counterintelligence case, and although it may have spawned criminal cases as a result, whatever hasn’t become a criminal issue remains a counterintelligence case. That information will likely not get included in a public report, although Mueller might still brief the appropriate congressional committees in closed session on those issues.
Analysts such as former federal prosecutor Andrew C. McCarthy have insisted all along that this should have been handled as a counterintelligence probe from the beginning. This might wind up with Mueller coming to the same conclusion — apart from some process crimes and Paul Manafort’s long-delayed prosecution on charges preceding his involvement in the Trump campaign. If so, then any report would be an even bigger nothingburger, although it wouldn’t prevent Congress from doing more with the information themselves.
That brings us to another good point Corn makes:
These regulations do not guarantee the public will receive a full accounting. Providing the citizenry a complete account of the Trump-Russia scandal is actually the responsibility of Congress.
Yes, exactly. The special-counsel statute was Congress’ way of ditching its responsibilities for oversight of the executive branch, which should be used only in break-glass-in-case-of-conflict-of-interest emergencies. This situation never did qualify as such, and it’s likely to produce the same results as the rest of the independent-prosecutor and special-counsel probes that preceded it: convictions on process crimes by peripheral figures and a whole lotta nothingburger on its main mission.
Mueller might still decide to emulate James Comey anyway and issue a detailed report that deviates far from DoJ practices. After all of the public abuse Trump has heaped on Mueller and his probe, he’ll certainly be tempted. If William Barr is Attorney General at that point, expect to see little to nothing of that in a public release. But it seems more likely that Mueller will diligently follow the DoJ’s practices and prove David Corn a prophet — and leave Democrats dealing with the collapse of expectations.