Analysis | When Mueller finishes his report, what will the people be told?

Special counsel Robert S. Mueller III, who is believed to be in the final stages of his investigation into Russian interference in the 2016 campaign, follows a history of special investigators who have sought to determine whether presidents or top officials have broken the law.

Some of those investigations led to public reports revealing every little detail. The Starr Report detailing Whitewater and President Bill Clinton’s sexual relationship with Monica Lewinsky was a bestselling book. Other cases led to convictions but kept the rest of the findings under wraps.

What will happen to Mueller’s report?

The rules under which he was appointed require certain disclosures and allow even more.

Mueller has already demonstrated the first way to publicize his findings — by filing charges in federal court. The indictments and additional pleas have laid out details of what Mueller found involving Russian activity, lying about contacts with Russians and more. The work has led to 35 indictments and guilty pleas from six former associates and advisers to President Trump. Mueller’s team may bring additional cases, and their work has already spawned cases that are being pursued in other jurisdictions.

Robert S. Mueller

Special Counsel

Indictments

and additional

pleas

Robert S. Mueller

Special Counsel

Indictments and

additional pleas

Robert S. Mueller

Special Counsel

Indictments and

additional pleas

When he’s done, Mueller is required to give the attorney general a “confidential” report that spells out the cases he prosecuted and the people he decided not to prosecute. The rules do not say whether this report has to be short or long. It’s Mueller’s choice. But the rules seem to preclude him from publishing his own book of findings like those published from the work of independent counsel Kenneth Starr.

William P. Barr

Attorney General

While the rules allow him to release it, they specifically cite Department of Justice policy that generally says prosecutors should not talk about people who are investigated but not charged to protect them from having their reputations smeared. During Barr’s confirmation hearing, Democrats in Congress pushed him to commit to release the full report, but he repeatedly declined to do so.

Barr can decide that releasing Mueller’s report “would be in the public interest” and share it.

William P. Barr

Attorney General

While the rules allow him to release it, they specifically cite Department of Justice policy that generally says prosecutors should not talk about people who are investigated but not charged to protect them from having their reputations smeared. During Barr’s confirmation hearing, Democrats in Congress pushed him to commit to release the full report, but he repeatedly declined to do so.

Barr can decide that releasing Mueller’s report “would be in the public interest” and share it.

William P. Barr

Attorney General

Barr can decide that releasing Mueller’s report “would be in the public interest” and share it.

While the rules allow him to release it, they specifically cite Department of Justice policy that generally says prosecutors should not talk about people who are investigated but not charged to protect them from having their reputations smeared. During Barr’s confirmation hearing, Democrats in Congress pushed him to commit to release the full report, but he repeatedly declined to do so.

Justice Department policy also holds a sitting president cannot be indicted, and several former prosecutors have suggested Mueller will follow that. In that case, evidence about Trump could be included in the confidential report to the attorney general but may not be made public.

That’s the tension between transparency and protecting people’s reputations. Post-Watergate rules for independent counsels in the 1980s and 1990s favored the public report. But that law lapsed in 1999, and Justice Department confidentiality rules now prevail. The rules make it a judgment call for Barr to release the report publicly or not, putting him at the center of the fight between Trump, Trump’s lawyers, other supporters and critics of the president.

On the other hand, another part of the special counsel rules requires the attorney general to make his own report. That report goes to the chairman and ranking member of the Judiciary committees in the House and Senate.

William P. Barr

Attorney General

Attorney general’s

report to Congress

Senate

Judiciary Committee

Chairman and

ranking members

House

Judiciary Committee

Chairman and

ranking members

Jerrold

Nadler (D-N.Y.)

Chairman

Lindsey O.

Graham (R-S.C.)

Chairman

William P. Barr

Attorney General

Attorney general’s

report to Congress

Senate

Judiciary Committee

Chairman and

ranking members

House

Judiciary Committee

Chairman and

ranking members

Jerrold

Nadler (D-N.Y.)

Chairman

Lindsey O.

Graham (R-S.C.)

Chairman

William P. Barr

Attorney General

Attorney general’s

report to Congress

Senate Judiciary Committee

Chairman and ranking members

House Judiciary Committee

Chairman and ranking members

Lindsey O. Graham (R-S.C.)

Chairman

Jerrold Nadler (D-N.Y.)

Chairman

To keep an attorney general from quietly snuffing out a special counsel investigation, the attorney general must explain any cases in which the attorney general stopped the special counsel from taking action because it was “so inappropriate or unwarranted” that it could not be allowed. If Mueller wanted to charge someone and the attorney general forbade it, it would seem that action would have to be revealed to Congress. Nothing in the rules requires the revelations to Congress to be confidential. Nor do they say whether that report is short or long. So Barr must make a report and, once again, can decide how detailed to be.

If they are not satisfied that the full story has been released, congressional Democrats may try to subpoena the report and have Mueller testify in committee.

The conflict over privacy and openness at the end of an investigation came to a head when FBI Director James B. Comey publicly announced in July 2016 that former Secretary of State Hillary Clinton had been “extremely careless” in handling classified information on her private email server but that she would not be charged. He later told the Department of Justice inspector general that “unusual transparency … was necessary for an unprecedented situation.” He subsequently testified before Congress about the investigation and made additional comments when it was briefly reopened shortly before Election Day.

Comey’s attempted solution to the conflict led him to be condemned by Clinton. And Trump. And their supporters. And the Justice Department inspector general.

Barr may be facing an even greater trial.

Ann Gerhart, Chiqui Esteban and Matt Zapotosky contributed to this report.

Read more:

What we’ve learned about Trumpworld outreach to Russia

The many contradictions in Trump’s relationship with Russia

Russians approached at least 14 people in Trump’s orbit during the campaign and presidential transition. Coincidence or coordination?

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