Publishing the Mueller Report

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Donald Trump and Valdimir Putin

“You may be disappointed by the Mueller report,” says NBC News. In some sense, this is an entirely correct and reasonable claim. It seems clear that many members of the general public have vastly inflated expectations about what the Mueller report will contain and how much of it they will be able to see.

The headline does, however, somewhat misrepresent the point of the article, which is that the rules for special counsel investigations at the Department of Justice provide for the prosecutor to submit a confidential report to the Attorney General, mostly explaining decisions to prosecute or not to prosecute.

It is not so much the report itself that the article cautions us about, but its availability to the general public.

The article explains that Ken Starr’s report of his investigation into Bill Clinton’s offenses became public soon after Starr submitted it to the House Judiciary Committee, which decided on articles of impeachment in both Nixon’s and Clinton’s cases. But Starr had his authority under a statute that no longer operates.

Mueller has his appointment under rules that the Department of Justice promulgated via the Code of Federal Regulations (CFR). Such rules have the force of law — one can incur penalties for violating them — but they are not equivalent to statutes. Congress is the ultimate source of law in the United States. Administrative agencies exist only because Congress has chosen to create them and to give them whatever power they may have to make rules, and Congress can always override the rules of any administrative agency. It seems highly unlikely that the Senate, under Republican control, would pass any bill for the purpose of forcing publication of the Mueller report.

However, Starr made gave his report to the House Judiciary Committee because he believed he had found grounds to impeach Bill Clinton. That Committee then voted to release the report to the public. The House of Representatives has, according to the Constitution, the “sole” power of impeachment, so it need not submit its decisions in such matters to the Senate.

To some extent, then, and this may yet prove disappointing, whether Mueller’s report becomes public may depend on whether he recommends impeachment of Trump and thus submits his report directly to the House Judiciary Committee, as the NBC story states. One other important difference is that the Clinton imbroglio in no way involved any matters of foreign policy. The Trump imbroglio obviously does. Thus, some of the contents of the Mueller report may remain secret on grounds of national security.

It seems obvious from our vantage point that Trump has given multiple good reasons to impeach him, but there is also the important consideration for any prosecutor of what they can prove. Obviously, Mueller has already mustered sufficient evidence to elicit pleas of guilty from several parties, mostly for lying to investigators. Other parties who have refused to plead guilty are undergoing trial. Trump has, of course, engaged for months in a pas de deux with investigators about whether he will answer their questions at all. Since he lies habitually, he almost certainly would do so if they questioned him formally as part of the investigation. Also, some of Manafort’s crimes in particular may well implicate Trump in other offenses that merit impeachment.

It’s not quite a crap shoot. Some outcomes are more likely than others. Still, prepare for disappointment.

Written by

Uppity gay, Buddhist, author, historian.

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