Whatever special counsel Robert Mueller and his team of investigators find out about President Trump, Russia, collusion and dossier gossip may never make it into the public domain.
While the tight-lipped Mr. Mueller apparently moves ever closer to a direct confrontation with Mr. Trump, a pointed legal argument has broken out over whether and how the special prosecutor and former FBI director can make his findings known. Options range from a full-on, tell-all report to a bare-bones summary of findings delivered privately to his Justice Department bosses.
Precedents from previous special prosecutors have been all over the map on disclosure, from the highly detailed report prepared by Ken Starr against Bill Clinton to far more modest disclosures. Which direction the former FBI director takes, legal scholars say, ultimately depends on how he imagines his role as special counsel and his reading of the updated statute regarding the work of special counsels.
“The question of whether and how the public will learn what Mueller knows is actually complicated — complicated legally, complicated historically and complicated as well with respect to another variable: how Mueller imagines his role as special counsel,” Quinta Jurecic and Benjamin Wittes, top editors at the legal news blog Lawfare, wrote in a recent analysis of the question.
Regulations governing special counsels mandate that Mr. Mueller submit a confidential report to the attorney general at the conclusion of his investigation. But there are major ambiguities, starting with what the Mueller team decides to include.
With Attorney General Jeff Sessions recused from the investigation, the report would go to Deputy Attorney General Rod Rosenstein, who selected Mr. Mueller. A second major question mark in the law involves what happens next. The statute says Mr. Rosenstein can override the confidentiality restriction if that “would be in the public interest, to the extent that release would comply with applicable legal restrictions.”
Mr. Rosenstein then would have to weigh several factors, including the “traditionally confidential nature of criminal investigations that don’t result in an indictment; the longstanding Department of Justice policy against public revelations; his own distaste for disclosure; and the likely dramatic effect on the government that public release of the report will cause,” Ross Garber, a specialist in government investigations at the Connecticut law firm of Shipman & Goodwin, wrote recently in the Los Angeles Times.
“And he will have to weigh all that against the public’s interest in knowing about the potential misconduct of the president,” Mr. Garber said.
In their Lawfare analysis, Mr. Wittes, a senior fellow at the Brookings Institution, and Ms. Jurecic cited three distinct models to guide the findings of the special prosecutor’s 11-month investigation. These models lead to different outcomes in terms of how much the public could be told.
The first special prosecutor dates back to the Grant administration and an 1875 scandal involving whiskey revenue, but the modern era is deeply marked by the Watergate special prosecutors, Mr. Starr’s Whitewater investigation, and the series of special counsels such as Mr. Mueller appointed to specific probes following the expiration of the independent counsel statute in 1999. Mr. Mueller, the Lawfare analysts say, could take one of three routes: the orthodox approach, the Watergate precedent and the Starr model.
“Broadly speaking, at least in the modern era,” they write, “these reports have taken two forms: final reports of the investigation and referrals to Congress of material that might be grounds for impeachment.”
The orthodox approach simply presents the facts and findings through the indictments of targeted individuals or plea agreements prosecutors have struck. There is no overarching narrative or legal summary prepared for public release.
Leon Jaworski, the final special prosecutor in the Watergate investigation, took a different tack by delivering “55 pages of bare-bones factual information” on President Nixon to the House Judiciary Committee, which was considering impeachment proceedings. Mr. Jaworski’s packet to the House panel also included what The New York Times described as “a briefcase stuffed with 800 pages of documents and 13 tape recordings of Nixon’s conversations in the Oval Office.”
But Mr. Jaworski’s report offered no independent legal conclusions and was drafted with the intent of allowing members of Congress to draw their own conclusions in the political matter of impeachment. Nixon resigned before the House of Representatives voted on Mr. Jaworski’s findings.
Starr and Whitewater
At the other extreme, Mr. Mueller could follow in the footsteps of Mr. Starr, who spent five years as an independent counsel originally charged with investigating President Clinton’s failed real estate deal known as Whitewater.
At more than 400 pages long, the Starr report was a comprehensive document that covered not only the failed Whitewater deal, which occurred years before Mr. Clinton became president, but also the firing of White House travel agents and a sexual harassment lawsuit filed by former Arkansas state employee Paula Jones. It also delved — in detail — into the extramarital affair between Mr. Clinton and former intern Monica Lewinsky, along with Mr. Clinton’s subsequent sworn testimony on the relationship.
Some legal scholars say they don’t see Mr. Mueller following the Starr blueprint, in part because revised rules in the wake of the Whitewater affair have transformed the landscape. Harvard Law School professor Jack Goldsmith and Madeline McMahon, a Harvard Law student, in a response posted on the Lawfare site, said the drafters of the new regulations regarding special prosecutors saw the public Starr report as a problem.
“It provides an incentive to over-investigate,” the two wrote, “in order to avoid potential public criticism for not having turned over every stone, and creates potential harm to individual privacy interests.”
Mr. Rosenstein’s appointment of Mr. Mueller last May stipulated a much narrower vision of the reporting requirement, raising the possibility that Mr. Mueller’s final report may not be public at all and could be handed over to the office of Attorney General Jeff Sessions for the administration to decide how to proceed.
“We think that the best reading of the special counsel regulations in their historical context rules out a Starr-like report to Congress that lays out hundreds of pages of factual allegations as well as legal analysis and conclusions,” they write. “The drafters of the regulations criticized that approach and took steps to preclude it, and on the whole, the regulations achieve that goal.”
Bob Bauer, White House counsel to President Obama, jumped into the controversy Thursday over the handling of Mr. Mueller’s findings. He said Congress can best protect Mr. Mueller from White House pressure by enacting a law stipulating that the special counsel would have to send a report on the status of his investigation directly to Congress if he is fired.
• Dan Boylan can be reached at dboylan@washingtontimes.com.
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