Robert Mueller has completed his investigation into Russian interference in the 2016 election. For the moment, we don’t know a lot more than that.
From the letter delivered to Congress by Attorney General William Barr, it is possible to determine a few things:
- Barr found no instances in which he found it necessary to overrule Mueller when it came to requesting information or seeking an indictment.
- Barr intends to brief the leaders of the relevant Congressional committees concerning the “principal conclusions” of the report as soon as Saturday or Sunday.
- Congress, and the public, may receive anything between absolutely nothing, and the full contents of that report. We don’t know.
According to multiple sources, a senior justice department official has also indicated the report will recommend “no further indictments.” Assuming that the quote is correct, there are no more remaining shots to be fired. CNBC reports that this includes no sealed indictments yet to be opened, despite an unusual number of such indictments in district courts around Washington since November. Which is genuinely disappointing.
But when it comes to the report, both extremes—no information and all information—seem unlikely. Barr notes in his letter that he is consulting with Rosenstein and Mueller about “other information from the report that can be released to Congress and the public.” That would seem a very odd statement to even include if the answer was going to be nothing at all. However, the word “public” is far from the end of that sentence. Barr continues by saying he will consult with Rosenstein and Mueller on releasing information “consistent with the law, including the Special Counsel regulations, and the Department’s long standing practices and policies.”
That’s the magic phrase that means the report is almost certain to contain zero mentions of Donald Trump.
As reporters have been warning for some time, the phrases that Barr used in his letter, in his public statements, in his Senate confirmation testimony, and in the unsolicited letter to the Justice Department that helped put him back in the driver’s seat all point to the same thing: The report that reaches the public is unlikely to say anything about Trump. Justice Department policy is that the department does not indict a sitting executive. Justice Department policy is that the department does not reveal any “derogatory information” about someone not under indictment. The two things together would seem to guarantee that a report following all department guidelines would filter out all mention of Trump.
But that result may not be as completely certain as it seems, and the answer is found in the Special Counsel Law. The report that Mueller provided meets his obligations under this section of that law.
(c)Closing documentation. 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.
Other than a budget, that’s just about the only paperwork that a special counsel is required to submit. Both of those items go to the attorney general. The attorney general is then required to let Congress know:
A description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.
Barr has stated that there were no such instances.
The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.
The report described here is not the report submitted by Mueller. This is simply the notification that Barr provided to Congress. That ‘report’ included his determination that it was okay to share his letter. When it comes to the report from Mueller, the rest of that rule is actually more expansive than it may seem.
All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.
What Barr can release is constrained by the limits of the departments rules when it comes to discussing indictments. But the information that Barr could potentially produce is not restricted to the “Closing documentation” provided by Mueller. In fact, there is no mention of this closing documentation when discussing the information that the attorney general might provide.
If the public is ever going to see the closing document provided to Barr by Mueller, it is almost certainly going to require an act of Congress—or an order from a Trump confident that it will do him no harm—as there is nothing in the law that requires him to produce this information, and department rules prevent its release. However, Barr could well produce something other than the closing document provided to him by Mueller.
It seems most likely that Barr will provide Congress with a document—not Mueller’s closing document, but something else—which summarizes the findings of the special counsel. That document will also be constrained by the limits of the Justice Department and will not directly discuss subjects who have not been the subject of indictment. However, it may give an overview of other findings of the special counsel’s office, especially when it comes to information that has been handed over to other jurisdictions for possible prosecution. It’s possible that Barr could provide to Congress a ‘report’ which contains more information than Mueller’s closing document. Or not.
In any case, the investigation into Trump’s crimes and those of his family and associates is not over. That investigation goes on in both state and federal jurisdictions. The investigation into Russian interference in the 2016 election is not over. That investigation continues in both the House and Senate. Even the special counsel investigation is not over. That investigation continues with the prosecution of Roger Stone. This is not its final report.
And who knows? Reports may say there are no more indictments to be opened, but reports may be wrong.