With the announcement on March 22 that Special Counsel Robert Mueller III has delivered his report to the Attorney General, the speculation on its contents has intensified. Recall that congressional Democrats have linked the report’s contents to their decisions on what and whom they will investigate.
Throughout the Mueller investigation from its inception in May 2017 to date there has been no doubt as to what he would report and what he would not report.
Prosecutors speak to the public through the indictments they bring, through their decisions not to prosecute (the fact of these decisions, not the reasons for them with Comey/Clinton being a departure from regular order), through their court filings and statements in court, and that’s it. Prosecutors speak privately to prospective witnesses and defendants or their counsel in their role as lawyers pursuing an investigation or a case.
For example, in the Southern District of New York when I served there and until today, the announcement of an indictment handed out to the press is headed “Outline of Indictment” even though it’s effectively a press release. And the United States Attorney, in pursuance of the outline’s statement that the investigation its “continuing,” may make remarks about the importance of the case but that is in the nature of speaking through an indictment.
In the case of the Mueller report, Deputy Attorney General Rosenstein, responding to an inquiry by then-Senate Judiciary Committee Chairman Charles Grassley, wrote to Sen. Grassley on June 27, 2018 to explain how severely circumscribed any Mueller report would be.
- There has to be congressional notification when an appointment is made and when it concludes.
- At the conclusion of the investigation, Congress must be notified of instances when the Attorney General (in this case, the Deputy) determined that a proposed action by Mueller should not be pursued.
- There is ongoing consultation with the Department of Justice components and continuing oversight by the Deputy Attorney General to assure that the Deputy Attorney General remains accountable and to assure the objectives of both independence and supervision by a Senate-confirmed officer.
- In the absence of some significant justification the Mueller report may not identify a wrongdoer unless that party has been officially charged with misconduct
So there you have it. Those hoping that you-know-who and his family will be identified and condemned in the Mueller report will be disappointed. This disappointment will lead to congressional investigations in at least three committees that will go over the same ground pursued by Mueller and will attempt to get Mueller’s records to do so.
And now the disclaimer. I haven’t see the report. Maybe Mueller has found significant justification to identify an uncharged Trump. If so, the fight will turn to what Attorney General Barr will and will not disclose to Congress or to the public.
Stay tuned. A lot will happen (and be leaked) this weekend.