Now Mueller’s Probe is Over, Should and Will His Findings Be Made Public? Law and Past Practice

The first waiting game is over. Special Counsel Robert Mueller has completed his role as Special Counsel and delivered his findings to Attorney General William Barr.

Now, the second waiting game begins: When will Congress and the public get to see the sum and substance of Mueller’s report, principal conclusions, findings, and underlying evidence? What does the law and past interbranch practice suggest will and should happen?

Just Security authors have long been analyzing those questions. Below we offer some of the analysis and varied perspectives our experts have provided on the prospects for public disclosure of material information about the most consequential public investigation since Watergate.

The upshot: There’s already a large body of information in the public domain from which Congress and the public can draw conclusions about conduct by Trump, his campaign, and other close associates (regardless of criminality); there are multiple possible “reports” associated with Mueller’s investigation, some of which are more consequential than others; and while this could take a long time to play out, Congress may have ways to get around grand jury secrecy rules and executive privilege claims that could otherwise prevent disclosure of Mueller’s findings. However, Mueller and the Justice Department may choose not to declassify information at issue in the counterintelligence investigation, which could limit public access, and it’s also possible that President Trump could interfere with disclosure of findings by unnecessarily classifying the information at issue.  

Here’s the breakdown by our experts:

Marty Lederman, March 18, 2019: Why it’s a mistake to be a-waitin’ “the” Mueller Report (and why you should instead focus on to other reports)

Lederman explains that the so-called “Mueller Report” probably won’t see the light of day for a host of reasons, but that such nondisclosure is not as troubling as it might appear at first glance, for two reasons:

First, we’ll already know most of what’s in Mueller’s report to Barr, because the information is already right out there in the public record, in the many grand jury indictments and other court filings that already are, or soon will be, widely available. The only substantive parts of the report that won’t be transparent, then, are Mueller’s explanations of why he chose not to seek indictments of others — possibly including the President.

Second, Mueller’s report to Barr is only one of three or more “reports” that ought to emerge when the Russia investigation ends. And at least two of those other reports, which will be submitted to Congress and parts of which may well become public, are likely to be far more revealing and more significant than the so-called “Mueller Report”:

(i) Barr’s own Section 600.9(a)(3) notification to the judiciary committees—which presumably Mueller will have drafted in large part—can be, and should be, a comprehensive account of the Russia investigation, consistent with Barr’s promise to senators in connection with his confirmation hearing that because “it is very important that the public and Congress be informed of the results of the Special Counsel’s work . . . my goal will be to provide as much transparency as I can consistent with the law.” That report might well reveal a great deal of factual information about President Trump’s actions involving Russia. We should not expect it, however, to include Mueller’s assessment about whether there are grounds to ask a grand jury to bring criminal charges against Trump after he leaves office, nor to offer any conclusions about whether Trump’s conduct did or did not satisfy the elements of any particular criminal offenses. Accordingly, as long as Trump is in office it will be up to the committees themselves—and Congress as a whole—to (in the words of the Jaworski road map) “determine what action may be warranted . . . by [the] evidence” presented in Barr’s notification.

(ii) It’s likely, however, that the most important “report” of them all will be the briefing that DOJ must provide to the congressional intelligence committees conveying the results of the counterintelligence investigation Mueller has superintended. In order to comply with the requirement of keeping those committees “fully and currently informed” of the results of the investigation, that briefing—which will probably include at least some written document—should include Mueller’s assessment, if any, about whether, how and to what extent Trump is compromised or is otherwise unable to perform his constitutional duties on behalf of the nation when it comes to the Russian threat to our electoral system. Does Trump have financial obligations to Russian interests? Was he—and does he continue to be—motivated by the prospects of a Moscow Trump Tower? Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence?  Or is there a more benign explanation for Trump’s otherwise inexplicable conduct regarding Russia and Putin? The counterintelligence investigation’s answers to these and similar questions—especially its assessment, if any, of the President’s current capacity to address the foreign threat—are of far greater current importance to the functioning of our government than determining whether Trump’s conduct in 2016-2017 violated any particular criminal statutes.

Of course, the FBI and the intelligence committees rarely disclose the results of counterintelligence investigations to the public, for obvious reasons:  In the ordinary case, much of the information is classified because it could reveal sensitive sources or methods and because there’s an interest in not revealing to the foreign subjects of the investigation what our government has learned about their activities.  This is far from an ordinary case, however. Congress and the public have a critical need to know whether and to what extent the president is compromised and whether he’s fit to respond to the Russian threat without fear or favor. It’s therefore safe to assume Mueller will try to convey such information to the committees in a form that permits the greatest possible dissemination consistent with national security imperatives.  At which point it will primarily be the responsibility of the chairs of the committees—Richard Burr (R-N.C.) in the Senate and Adam B. Schiff (D-Calif.) in the House—to assess how much of the information they can and should share with the rest of Congress and the public.

Ryan Goodman and Andy Wright, Mueller Findings: Why DOJ Non-Disclosure Policy and Grand Jury Secrecy May Not Apply (Feb. 26, 2019)

Goodman and Wright argue that whatever Special Counsel Robert Mueller finds, the American people, and their congressional representatives, have a right to know whether they can continue to entrust President Donald Trump with the power of the presidency.

As we look toward the Mueller investigation’s endgame, we believe some issues concerning transparency of Mueller’s findings have not been appreciated in commentary to date.

1. Grand jury secrecy will not cover a great amount of the evidence Mueller collected.

Many commentators assume that a central concern with the disclosure of Mueller’s findings involves the secrecy generally afforded grand jury information. Those discussions boil down to considerations of whether the normal protections afforded such grand jury information might be overcome, for example, by a congressional subpoena. That issue is complicated, and Congress may ultimately prevail. But short of that, grand jury secrecy won’t cover a lot of the most important evidence.

For example, the FBI’s interview memoranda — called “302s” due to their federal form number “FD 302” — are not covered by grand jury secrecy rules unless they are transformed by their use before the grand jury…In addition, the courts’ prevailing view of grand jury secrecy rules would not apply to a congressional subpoena directed at documents that also happened to have been subpoenaed by the grand jury.

But before even thinking about grand jury secrecy rules, what if the Special Counsel’s Office conducted an entire thread of the investigation without resort to a grand jury?

That seems to be the case with the part of the investigation focused on President Trump’s potential obstruction of justice and abuse of power while in office. Matthew Miller reported that none of the witnesses who have spoken to the Special Counsel Office about obstruction have gone before the grand jury. If this is accurate, grand jury secrecy rules would not prevent Mueller from making public his report on the President’s efforts to hamper the investigation. At a minimum, it denies the Attorney General a reason to decline the release of this body of information on grand jury secrecy grounds.

2. Public hearings are even more warranted if no charges are filed against Trump campaign associates.

If no criminal charges are filed against Trump campaign associates for conspiring directly with Russia or Wikileaks, there may be an even stronger ground for holding public hearings. The absence of any pending criminal prosecutions could help free up Mueller—and other members of the Special Counsel Office and witnesses like George Nader and Michael Cohen—to speak publicly without concerns that congressional hearings might interfere with ongoing criminal investigations.

3. It is far from clear that the DOJ policy of not disclosing derogatory information about people who aren’t indicted applies to much of the Mueller investigation.

The Justice Department is likely poised to make the claim that, in accord with longstanding Department policy, it won’t release derogatory information about people who the prosecutors do not indict in the course of an investigation. As recently as Monday, Deputy Attorney General Rod Rosenstein publicly affirmed his support for this policy in words that the Washington Post called “an ominous sign for those hoping the department will soon disclose the closely held details of special counsel Robert S. Mueller III’s probe.” Rosenstein said, “The guidance I always gave my prosecutors and the agents that I worked with during my tenure on the front lines of law enforcement were if we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.”

But that Justice Department policy applies to criminal investigations. It is not as clear how those interests apply in a counterintelligence context. Mueller’s mandate is primarily a counterintelligence one focused on “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The special counsel is then, as a secondary matter, authorized to prosecute federal crimes discovered in the course of that investigation. In other words, Mueller’s core mandate is focused on finding out if there is derogatory information about individuals associated with the Trump campaign, regardless of whether their conduct amounts to crime. The fact that campaign members may have not crossed the line of criminality or may have committed crimes but not in a manner provable beyond a reasonable doubt should not shield them from exposure in a public report for corruptly working with a foreign adversary to undermine an American election — if that’s what happened.

The natural remedy for conduct designed to undermine democratic elections, and public confidence in them, is disclosure of that nefarious conduct to the democratic citizenry victimized by it. If the information concerning what certain Americans did in concert with a foreign adversary is derogatory, well that’s exactly what Mueller was charged to find out, and what the public has a right to know.

Joshua Geltzer, Decoding What Barr Really Said About Letting the Public See the Mueller Report (Jan. 16, 2019)

Geltzer argues that, during his confirmation hearings, Barr didn’t answer the key question of whether he’d make Mueller’s final report public—or, if he did, his answer missed the mark.

The first key comment from Barr on this important issue came in response to Sen. Richard Blumenthal (D-Conn.): “There are two different reports. Under the current regulations, the special counsel report is confidential. The report that goes public would be a report by the Attorney General.”

Barr’s correct that the special counsel regulations anticipate two different reports, or at least two different types of reporting. The first type of reporting goes from the Special Counsel to the Attorney General and is indeed at that stage confidential, as Barr suggests. As the regulations explain, “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.” The second type of reporting goes from the Attorney General to Congress, and is triggered by the Attorney General appointing or removing a special counsel and also upon conclusion of the special counsel’s investigation, at which point the Attorney General must inform Congress of any instances in which the Attorney General rejected an action proposed by the special counsel, as the regulations also explain. The Attorney General reports are no substitute for the Special Counsel report. The formal commentary that accompanied issuance of the special counsel regulations, for instance, describes the Attorney General reports as “brief notifications, with an outline of the actions and the reasons for them.”

The big question concerns the public release of the first type of reporting.

But Barr errs in describing the first type of reporting as “confidential” as the last word. It’s true that the report provided is confidential as it goes from the Special Counsel to the Attorney General; and the regulation’s formal commentary explained that this confidentiality was an effort to accommodate privacy interests and to ensure that a special counsel wouldn’t feel pressure to investigate endlessly lest a public accounting be subject to criticism for any gaps in it. Note that the confidentiality provision is specific to the Special Counsel’s final report that explains decisions to prosecute or to decline to prosecute individuals. Mueller may in fact file with the Attorney General other kinds of reports, such as one concerning the counterintelligence findings of any collusion with Russia. Still, the real question isn’t about what goes from the Special Counsel to the Attorney General; it’s what happens next….When pressed on this by Sen. Dianne Feinstein (D-Calif.), Barr’s response was indeterminate.

The most generous reading of Barr’s response emphasizes Barr’s indication that his “objective and goal is to get as much as I can of the information to Congress and the public.” But his response also suggests that the report “will be handled as a confidential document,” and is caveated by Barr’s musing as “to the extent I have discretion” to release it.

Let’s be clear: the Attorney General has such discretion—and not only to release “information” about the report but also to release the report itself. Indeed, the report, once delivered confidentially and redacted as may be appropriate, is in a sense like any other Justice Department document: it’s in the discretion of the Attorney General to share it with Congress and the public. Indeed, that’s what the very next sentence of the Special Counsel regulations seems to suggest: “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.”

Kel McClanahan, Trump’s Ability to Classify Mueller Report is Greater Threat Than Executive Privilege (Sept. 18, 2018)

McClanahan argues the real threat to public disclosure of the Mueller report is President Trump’s ability to unilaterally classify the report.

Simply put, there are currently no restrictions on the President’s ability to reach down into an agency and classify any document on his own authority, whether it be a formal investigative report or a cafeteria menu. The only governing rules are established by Executive Order 13526 – the latest iteration of a long line of Executive Orders on national security information classification. But for reasons explained below, those rules are either so broad as to be relatively meaningless or are virtually unenforceable by anyone seeking to prove that Trump misclassified a document.

I believe we should be far less concerned about Trump claiming executive privilege or ordering Rosenstein not to publicly release the report and far more concerned about him classifying it. That is his smartest play.

Jessica Marsden and Andy Wright, Executive Privilege and the Public Interest: Why the President Can’t Block Release of the Mueller Report (Sept. 13, 2018)

Marsden and Wright argue that executive privilege doctrine likely will not cover much of the material related to the Mueller investigation.

Under well-established Supreme Court doctrine, executive privilege is qualified, not absolute. Claims of executive privilege must fail in the face of a strong interest on the part of Congress, the courts, or the public (as FOIA requesters) in the release of the information. In the case of a lengthy counterintelligence and criminal investigation into the president and his close associates, public interest is at its peak, and executive privilege should be no obstacle to the public release of the Special Counsel’s report.

To begin with, executive privilege extends only to certain types of executive branch information: presidential communications, deliberative processes, state secrets, some attorney-client communications, and some active law enforcement files. Much of the information likely to be in the Special Counsel’s report falls outside those categories.

What’s more, executive privilege can be waived, and it is important to understand how waiver works given some of President Trump’s and his associates’ statements. Prior disclosure of potentially-privileged White House communications results in a waiver of privilege as to those communications.

But let’s assume there are other documents or testimony where privilege has not yet been waived. How would courts decide who prevails? In reviewing privilege claims, courts balance the executive branch’s need for confidentiality with the needs of the grand jury, Congress, or the public for the underlying information. When it comes to allegations of government misconduct, the public interest in disclosure is strong. As Andy pointed out with Norm Eisen, courts have identified a public interest in “uncovering illegality among its elected and appointed officials and transparent and accountable government” as a reason to pierce evidentiary privileges. That public interest is codified in the Special Counsel regulations themselves, which recognize the possibility that the release of the Special Counsel’s report may be in the public interest.

The president’s own legal defenses — that a sitting president cannot be indicted and cannot ever be convicted of obstruction of justice for official acts — only increase the need for a public airing of the report. If the president’s lawyers are right about his freedom from legal liability, then political remedies (including potentially congressional censure and impeachment) are the only accountability mechanisms available — and they require that the Special Counsel’s report become public.

Even setting aside questions of impeachment, the release of the Special Counsel’s findings is essential to public trust in the investigation. The investigation primarily concerns Russia’s efforts to wage a war on our democracy that continues to the present day. Understanding whether President Trump’s campaign was involved in the Kremlin’s attack on democracy, and whether he tried to impede an investigation into those events, is important to moving past a dark stretch in the country’s history. If the public never gets to see the Special Counsel’s explanation of the president’s actions (or inactions), public trust in the investigation is likely to be weakened in ways that will redound to the detriment of our democratic system of government. (This is particularly true in light of President Trump’s repeated efforts to cast doubt on the honesty and objectivity of the Special Counsel’s team.)

Douglas N. Letter, Rudy’s Red Herring: Mueller’s Final Report and Executive Privilege (Sept. 10, 2018)

Letter (now the General Counsel of the House of Representatives), argues that the President’s power as the head of the executive branch — rather than executive privilege — presents the greatest threat to transparency related to the Mueller investigative report.

Rather, when the question whether to release Mueller’s report to the public eventually arises, Rosenstein will have to decide if such a disclosure is “in the public interest” and consistent with law. That determination would clearly appear to be something that the Attorney General’s boss – the President – could weigh in on and could even bind the Attorney General through an official order. All of this could be done without any resort to purportedly applicable evidentiary privileges. The reason there’s any talk about assertion of privileges perhaps arises from President Trump’s failure to grasp that he is the head of the Executive Branch and therefore can issue direct orders to the members of that branch, and that he is accountable for whatever decisions and actions either he or officials in his branch of government take.

Ryan Goodman and Alex Whiting, How Mueller Can Make the Grand Jury Report Public or Hand it to Congress (Aug. 14, 2017)

Goodman and Whiting outline alternative options for the disclosure of Mueller’s findings and evidence including (1) disclosure of evidence to Congress via a congressional subpoena; and (2) a public report out of the grand jury using a special procedural device.

I. Disclosure to Congress: An open door

Congress could likely subpoena the grand jury evidence for the purpose of considering impeachment of Trump (though of course this would presently require the agreement of Republicans).

Ordinarily, Federal Rule of Criminal Procedure 6(e) imposes secrecy on any “matter occurring before the grand jury” (there may be some wiggle room to argue that documents subpoenaed by the grand jury do not necessarily reveal a matter occurring before the grand jury, see In re Grand Jury Impaneled Oct. 2, 1978 (79-2), 510 F.Supp. 112, 113-15 (D.D.C. 1981), and therefore could be disclosed without contravening Rule 6, but let’s assume that there would be a bulk of evidence, including witness testimony, that indisputably fell within Rule 6’s mandate).

None of the exceptions contained in Rule 6(e) plainly permit disclosure to Congressional investigative committees. However, the analysis does not stop there. Several Circuit Courts of Appeal have held that courts have the inherent authority to order disclosure of grand jury materials even outside of the constraints and exceptions of Rule 6(e), with different courts offering tests to determine the narrow circumstances when this would be permitted. See, e.g., Carlson v. United States, 837 F.3d 753 (7th Cir. 2016); In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997); In re Petition of Stanley Kutler, 800 F.Supp.2d 42 (D.D.C. 2011) (permitting disclosure of Richard Nixon’s Watergate grand jury testimony).

Specifically, there is clear precedent for the disclosure of grand jury materials to Congress for purposes of impeachment. The Court of Appeals for the D.C. Circuit affirmed Judge Sirica’s order transmitting a report from the grand jury to the House Judiciary Committee for consideration of impeachment of Richard Nixon. Judge Sirica found that Rule 6(e) aimed to do no more than codify the “traditional practice of secrecy” of the grand jury, a practice which the judge found to be narrow but not inconsistent with the disclosure to Congress for purposes of impeachment. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974).

More recently, the Eleventh Circuit considered the issue in the case of Judge Alcee Hastings, a federal district court judge from Florida who was first prosecuted and acquitted for federal bribery charges, and then impeached on the basis of the same evidence by the House and Senate in 1988 (Hastings went on to win election to the House of Representatives in 1993, a position he continues to hold today). After Hastings’ acquittal, first an Investigating Committee of the Judicial Council of the Eleventh Circuit (“the Investigating Committee”) and then the House Judiciary Committee sought the grand jury materials for purposes of considering whether Hastings should be impeached. The Eleventh Circuit affirmed confidential disclosure to the Investigating Committee (so no public disclosure), relying on its inherent authority and after concluding that disclosure was warranted because of the societal importance of impeachment and the analogous nature of an impeachment proceeding to a judicial one. In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d 1261 (11th Cir. 1984).

When the Eleventh Circuit later considered whether the grand jury materials could be provided to the House Judiciary Committee, the parties then agreed that impeachment was a “judicial proceeding” within the meaning of Rule 6(e) and that therefore a court could order disclosure under the terms of that Rule. The Eleventh Circuit found that disclosure to the Judiciary Committee was warranted for essentially the same reasons it allowed disclosure to the Investigating Committee. The court found, however, that it could not order the Judiciary Committee to maintain confidentiality, as this would impinge on Congress’s constitutional authorities, and noted that while the Committee said that confidentiality rules would apply to the documents, the Committee was free to change its mind and make them public.  In re Request for Access to Grand Jury Materials Grand Jury No. 81-1, Miami, 833 F2d 1438 (11th Cir. 1987). In sum, therefore, the Eleventh Circuit suggested two separate legal bases to order disclosure of grand jury materials to a congressional body considering impeachment, relying either on the court’s inherent authority or on the “judicial proceeding” exception of Rule 6(e). And the Eleventh Circuit recognized that the Congress may subsequently choose to make that material public.

These precedents strongly indicate, therefore, that Congress would have no difficulty subpoenaing the results of Mueller’s grand jury investigation should that inquiry end without an indictment of Trump, but with some indication that impeachment might nonetheless be warranted.

II. A report to the public: A highly limited option

As an alternative, Mueller could turn to 18 U.S.C. 3333 which allows a “special grand jury” to issue public reports “concerning noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee as the basis for a recommendation of removal or disciplinary action.”

At first blush, there might seem to be some potential here. But there are numerous barriers. First, a minor hurdle is that Mueller would have to convene a special grand jury pursuant to 18 USC 3331, which permits the impaneling of a special grand jury in any district of more than four million people or if authorized by a senior official in the DOJ. Moreover, the statute is narrow and would apply only to misconduct in office (so not during the campaign) and only if it involved “organized criminal activity.” While the DOJ has defined this term broadly to include “any criminal activity collectively undertaken,” it nonetheless requires some evidence of criminal activity to which the alleged misconduct relates. One possible narrow opening might be if the grand jury investigation uncovered evidence that administration officials had organized themselves to obstruct the investigation in ways that constituted misconduct or malfeasance, but fell short of indictable criminal conduct. In that limited case, section 3333 would provide an avenue for Mueller to generate a public report of officials’ activities related to the obstruction of justice.

Perhaps a bigger problem with either presentment (regarding any person aside from the President) or a special grand jury report is an institutional one. Prosecutors place great store in the principle that either you indict following an investigation, and allow the subject of the indictment to defend himself or herself in court, or you stay quiet. This is why many experienced prosecutors had difficulty with James Comey’s public statements regarding the Hillary Clinton email investigation. Disparaging the targets of investigations or disclosing damning information about them without allowing them any avenue to defend themselves is generally considered unfair, and it is often likely to reduce the legitimacy and credibility of the prosecution office. Moreover, it could thrust the Mueller into the uncertain and treacherous position of determining what constitutes “misconduct” or “misfeasance” short of criminal conduct and how far such reporting should go. It seems likely that Mueller would be particularly sensitive about avoiding taking any steps that could discredit the office of the special counsel, and would therefore be loath to go down any path that might end with him offering public disclosures about the activities of public officials without charging them.

The counter-argument is that there is a strong public interest in knowing of evidence of misconduct of serving public officials and that in fact the work and role of the special counsel could be questioned if this information were kept secret. In addition, Mueller may find that this White House’s misrepresentation of the truth and attempts to undermine investigations requires a public airing of some of the findings. He may also think that the White House has an extraordinary platform to defend its officials in the face of disparaging information. In the unlikely event that Mueller finds himself in the position of having to consider whether to recommend a special grand jury report, these are the factors that he will have to consider.

 

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