This leftover braggadocio from the Sunday morning talk shows didn’t age well, at least not in light of Rod Rosenstein’s remarks this afternoon. If Robert Mueller’s special-counsel report to Attorney General William Barr does not get passed to Congress, House Intelligence chair Adam Schiff (D-CA) told George Stephanopoulos that he would subpoena the full report from the Department of Justice. And if that didn’t work, Schiff said on ABC’s This Week, he’d subpoena Mueller himself and grill him on what the investigation discovered:
House Democrats plan to subpoena the report produced by special counsel Robert S. Mueller III if the Justice Department doesn’t release to Congress the full findings of the investigation of Russian interference in the 2016 presidential campaign, increasing the political pressure on the Trump administration with the nearly two-year inquiry expected to end soon.
House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) said Sunday that Democrats also are prepared to subpoena Mueller and go to court against the Trump administration, if necessary.
“Well, we will obviously subpoena the report. We will bring Bob Mueller in to testify before Congress. We will take it to court if necessary,” Schiff said on ABC News’s “This Week.” “And in the end, I think the [Justice] Department understands they’re going to have to make this public. I think [Attorney General William P.] Barr will ultimately understand that, as well.”
Alternate headline: A Special Counsel’s Work is Never Done. Schiff was hardly alone on this, either. The Washington Post put together a brief summary of subpoena threats from Democrats yesterday, including Sen. Ed Markey’s contention that both Republicans and Democrats have a “responsibility” to stand up to Barr if he “sanitizes” the report. Six Democratic chairs in the House have already threatened to go to court if Barr and Mueller don’t report wrongdoing by Trump on the basis of DoJ policy that a president can’t be indicted.
Neal Katyal told Chuck Todd that a special counsel has a duty to report such evidence, and Barr has a duty to report it to Congress as well:
Yeah, so the idea was there was going to be law enforcement, sensitive material in there. And in general, you wanted that report to be confidential. However, when you’re dealing with potential wrongdoing by the president of the United States, if Mueller finds information out that says this, absolutely, the attorney general, here, Barr, has the discretion to turn that report over to Congress. And indeed, he has to. The overall intent of the regulations have said, time and time again, is public confidence in the administration of justice. And any sort of suppressed report about presidential wrongdoing will flunk that test.
Here’s the problem with that argument, assuming we see no further indictments from Mueller (a bold assumption, it’s good to remember, while Mueller’s still in operation). Nothing in the outstanding indictments or executed plea deals ties anyone else to the original Russia-collusion hypothesis, which is that the Trump campaign knowingly colluded with Russian intelligence to corrupt the 2016 election. Unless Trump did so directly with Russian intelligence without people like Paul Manafort and Roger Stone leading the effort, Mueller has presented no dots to connect. A number of people have lied to investigators, but nothing in those indictments and plea deals suggest that the lies covered up contacts to Russian disinformation and hacking operations. Most of those, apart from Stone, have already been fully adjudicated as well without any evidence that the lies relate to that central hypothesis.
Unless some new indictments are coming down the pike, which is still possible, we’re left without any connections between Trump and the hypothetical colluders, and/or the colluders to Russian interference operations. If Mueller found those connections, we would know it from grand jury indictments. Its absence, therefore, in a final report would mean there was nothing to find in the first place — at least on collusion. Mueller might have more to say on obstruction of justice in the firing of James Comey, but given the authority of the presidency to dismiss an FBI director and the participation of deputy Attorney General Rod Rosenstein in that finding, that’s not likely to go anywhere, especially with Barr.
All this makes a Mueller subpoena rather worthless. Special counsels are bound to remain quiet about evidence found against those who have not been indicted. If there are no middle-man indictments, then again, what is Mueller going to say about Trump?
Aaron Blake suspects this is just Schiff “working the refs“:
The special counsel statute he’s working under — which is different than the one independent counsel Kenneth Starr operated under in the 1990s — says decisions about disclosure are left to the attorney general (Barr) and not Mueller. This was in part because Starr’s public comments about his investigation were seen as overzealous.
Also, Rule 6(E) of the Federal Rules of Criminal Procedure say information obtained via grand jury can’t be disclosed except via court order or to prosecute someone. And given Justice Department rules say a sitting president can’t be indicted, any crimes Trump might have committed won’t be prosecuted.
So what about non-grand jury materials, like voluntary testimony? Justice Department policy also prohibits disclosure of information that does not lead to a prosecution. And what’s more, it cautions its personnel against taking actions that could influence an election — which could apply with the 2020 campaign getting off the ground. …
In the end, it’s probably best to view this as a tactic in the context of the burgeoning legal fight. Democrats want Barr to voluntarily release as much as possible and possibly even the full Mueller report. They could also seek a confidential so-called “road map” like the one Congress got with Richard Nixon, which essentially pointed them in the direction of what Nixon had done wrong.
It’s working the refs. They’re essentially signaling that it would just be best to get the information out now, or they’ll use their subpoena powers to try to force the issue — and cause Barr and the Justice Department real headaches. But the idea that Mueller will show up and spill key information is probably fanciful.
So far, the idea that Mueller has such “key information” on Trump is fanciful. It’s not evidenced in any of the grand jury indictments nor in Mueller’s plea deals with people who would have been logical conduits, especially Manafort. Schiff’s not just working the refs, he’s also working the media by pretending that Mueller’s sitting on some sort of time bomb and that he’s the only one who can detonate it in public. Schiff can subpoena to his heart’s content, but he’s much more likely to end up producing another round of La Résistance disillusionment.
Schiff starts off by calling Michael Cohen an important witness to Donald Trump’s personal finances. Perhaps, but Schiff knows that Cohen was convicted of lying to Congress once before, right? And then not coming clean with Mueller?