No, We Can’t Rely On The Special Counsel To Uncover The Cover-Up

There’s no guarantee that Mueller will be allowed to complete his investigation, or that his findings will be disclosed if he does.

In the aftermath of former FBI Director James Comey’s testimony last week, we’re hearing a lot of people say that it’s time to let Special Counsel Robert Mueller sort it all out. Everything else is “just noise.” This is coming primarily from Republicans, but it is also a line we hear regularly from the cable television talking heads.

The idea is that when the special counsel, with all of his investigatory and prosecutorial powers, finishes his investigation and writes his report, we will find out definitively whether President Trump, or those around him, broke laws, obstructed justice, or simply lied and acted unethically.

(Brief aside: The Trump bar is now so low that the proposition that all he did was lie and act unethically is widely advanced as his defense. His surrogates are rallying around the idea that so long as his actions don’t meet the legal definition of obstruction of justice, but were only dishonest and “inappropriate,” he should be in the clear. “Inappropriate” is a pathetic euphemism for “unethical.”)

But the truth is that we can’t count on the special counsel to sort it out for us.

The problem is not Bob Mueller. Mueller is as trustworthy as anybody who could have been appointed as special counsel, and he appears to be doing all the right things. Nor is the problem that Mueller won’t have the tools or resources he needs to conduct a credible investigation. The special counsel regulations and his letter of appointment give Mueller what he needs.

The problem is, first of all, that there is no guarantee that Mueller will be allowed to complete his investigation or issue a report. As I pointed out in an earlier article, under the controlling regulations of the Department of Justice, the attorney general, not the special counsel, controls both the purse strings and the ability of the special counsel to complete his mission. In other words, the investigation is vulnerable to political interference, including defunding and premature termination, by the Trump administration.

But let’s assume for the moment that the Trump administration does not interfere with the special counsel investigation, and that Mueller pursues it to the end and issues a report.

Even then, we may never know the findings or conclusions reached by the special counsel.

Suppose, for instance, that criminal charges are brought against somebody other than Trump himself. Maybe Flynn or Manafort, to name two likely suspects. The indictment in that case might not even touch upon Trump’s conduct. It may be unrelated to issues like whether Trump tried to get Comey to back off the Flynn investigation, or whether Trump instructed Flynn to provide assurance to the Russians in exchange for help in the election.

And even if a criminal charge does somehow touch upon Trump’s conduct, there may not be enough in the indictment itself to give the public a complete picture. It would take a trial to do that, and there may never be a trial. The defendant could avoid a trial by entering into a plea bargain agreement.

Consider also the possibility that Mueller may decide not to charge anybody with a crime. In that case, too, we may never learn the underlying facts or the basis for his conclusions.

It is quite possible that Mueller could decide not to indict Trump, or anybody else, even though Trump lied, acted unethically and failed to live up to his oath of office. None of that necessarily translates into an indictable crime. Mueller could simply conclude that Trump’s conduct, as despicable as it may have been, did not meet the required elements of a specific felony with which he could be charged.

In other words, Mueller may end the Trump Russia investigation pretty much the same way that Comey ended the Clinton email investigation. He may exercise prosecutorial discretion not to bring criminal charges despite having uncovered facts that go to Trump’s dishonesty, lack of integrity, and unfitness for office.

The difference is that if Mueller reaches that kind of conclusion, he will not do to Trump what Comey did to Clinton. He will not dramatically damn Trump with a public dressing down, he will not spell out the gruesome facts, and he will not articulate highly derogatory conclusions at the same time he announces his decision not to prosecute. He might put it in his report, but he won’t disclose it publicly.

He can’t.

Whereas Comey’s decision to publicly trash Clinton was a violation of longstanding Justice Department and FBI policy, Mueller’s doing the same to Trump would be a violation of the law.

The special counsel, unlike the FBI director, is bound by Department of Justice regulations that prohibit him from publicly disclosing the result of his investigation. Those regulations require the special counsel to provide the attorney general, and only the attorney general, with a “confidential” report explaining his decision to prosecute or not.

Understand “attorney general” to mean Jeff Sessions or his deputy, and “confidential” to mean secret.

Although the attorney general is required, in most circumstances, to “notify” the chairmen and ranking minority members of the House and Senate judiciary committees, and provide them with “an explanation” of the conclusion of the special counsel’s investigation, there is no requirement that the attorney general provide anybody with the special counsel’s report itself. The level of detail that would meet the requirement of an “explanation” is not spelled out. It is left to the discretion of the attorney general.

Moreover, despite the nominal notification requirement, the attorney general doesn’t really have to notify Congress at all. Or anybody else.

There’s a loophole.

The notification requirement may be “tolled” by the attorney general if he believes that legitimate investigative or privacy concerns require confidentiality. “Tolled” here means the report and its conclusions may be kept entirely secret, even from Congress, for an indefinite period of time. The determination of whether there are legitimate “investigatory or privacy” concerns to warrant nondisclosure is left entirely to the discretion of the attorney general.

Does anybody doubt how Jeff Sessions, or some other Trump appointee, will come out on this if Mueller submits a report that doesn’t indict Trump for a crime, but nevertheless lays out a narrative showing that his conduct was dishonest, unethical, and deeply embarrassing? Especially if the special counsel’s report lays out facts that might be grounds for impeachment, but not necessarily for a criminal indictment?

Remember that the standards for impeachment and criminal indictment are not the same. “High crimes and misdemeanors,” the impeachment standard, does not require a criminal indictment. Impeachment proceedings were brought in the absence of criminal indictments in the cases of both Richard Nixon and Bill Clinton.

So the next time you hear a Trump surrogate argue that everybody should just relax and wait for the conclusions of the special counsel’s investigation, you should interpret that to mean, “Zowie, we might actually be able to bury this!”

If we want real answers, we can’t rely on the special counsel to provide them, and we can’t wait for a report we may never see.

It’s up to an engaged public for force Congress and the press to keep pushing for the truth.

And that’s not “just noise.”

Philip Rotner is a writer, attorney and an engaged citizen who has spent over 40 years practicing law. His views are his own and do not reflect the views of any organization with which he has been associated. Follow him on Twitter at @PhilipRotner.

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