Democrats may have to surrender any hope of seeing Special Counsel Robert Mueller’s final report, especially if President Donald Trump’s first choice to become the next U.S. attorney general is confirmed.
Answering questions from the Senate Judiciary Committee, William Barr made it quite clear that the findings from Mueller’s report may not be “release-able.” And unfortunately for Democrats who want to see the president impeached, this is a completely justified legal opinion.
RIP the Mueller report
The special counsel’s investigation into possible collusion between the Trump campaign and Russia has been ongoing for 18 months now, and both Democrats and Republicans are anxious to see what Mueller’s team has uncovered. So far, only a handful of campaign and administration officials have been charged for ancillary offenses unrelated to collusion, and the smoking gun that Trump’s critics so desperately desire has failed to materialize.
In fact, Mueller’s final report may never see the light of day. When asked about the pending Mueller report during the first day of confirmation hearings, Barr explained how he would be confined by the statutes governing a special counsel.
“I don’t know, at the end of the day, what will be release-able,” he told the committee. “The rules I think say the special counsel will prepare a summary report on any prosecutive or declination decisions, and that shall be confidential and be treated as any other declination or prosecutive material within the department.”
Barr previously served as U.S. attorney general under President George H.W. Bush, and as an experienced litigator, his interpretation of the special counsel statute should not be taken lightly. By arguing that “prosecutive or declination decisions” should be treated as “confidential,” Barr is saying that even if the special counsel uncovers undeniable evidence that Trump committed a crime, regulations could keep him from sharing that information with Congress and the general public.
New rules
Why, after months of hand-wringing and suspense, are Americans now being told that the Mueller report could be written for the attorney general’s eyes only?
Most Americans remember the Independent Counsel Kenneth Starr’s 211-page report, which recounted in lurid detail the sexual tryst between President Bill Clinton and White House intern Monica Lewinsky. However, former White House general Counsel Nelson Cunningham, who was one of the first to see the writing on the wall regarding the Mueller report, explained why the rules are different for the special counsel:
First, special counsel Mueller is not independent counsel Starr. They were appointed under different authorities, with radically different rules for reporting and disclosure. Starr was required by the independent counsel statute governing his appointment not only to conduct a criminal investigation but also to submit a report to Congress if he found any evidence of impeachable offenses.
Unlike the independent counsel statute, which expired in 1999 and mandated a congressional report, the special counsel is governed by extremely narrow rules regarding its findings. Section 600.8(c) of the more recent statute states that the special counsel shall provide the attorney general with a “confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
“Declination decisions” are made when the government decides not to prosecute something, and Department of Justice policy and Grand Jury rules have long prohibited prosecutors from publicly discussing cases where the subject of an investigation is not being indicted. Ironically, former FBI Director James Comey was fired for doing just that when he held a press conference describing Hillary Clinton’s abuse of classified material as “extremely careless.”
Catch 22
However, even if Mueller uncovers evidence of a crime, he may have to keep the details to himself and the attorney general. DOJ policy also states that a sitting president cannot be indicted, and Mueller is bound by those regulations.
Even if Mueller determines that “other governmental action outside the criminal justice system might be appropriate,” such as impeachment, he can only share his evidence with the attorney general, who can decide whether or not to share this information with “the appropriate component.” Congress is left out in the cold, waiting for a special counsel report that may never materialize.
And for good reason. When the government drafted laws prohibiting the publication of evidence for which the subject is not being indicted, lawmakers were protecting against the release of derogatory information for political gain.
In the end, Democrats will have to content themselves with a report will likely fall short of their expectations. Nonetheless, Democrats absolutely loathe the president and refuse to accept him as their commander-in-chief, so don’t expect them to retreat quietly into the night if Mueller fails to produce evidence of collusion.
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