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Unnamed sources in a Washington Post story last week claimed that Special Counsel Robert Mueller told President Trump’s lawyers that “he is preparing a report about the president’s actions while in office and potential obstruction of justice.” The Post added that “Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages—with the first report focused on the obstruction issue.” The second and later report, according to the “president’s allies,” would concern “the special counsel’s findings on Russia’s interference.”
Assuming the Post story accurately captures Mueller’s intentions, it raises two questions: First, is Mueller authorized to prepare an interim report on obstruction?; and second, under what circumstances can the report be sent to Congress or made public? The answers are not obvious.
- Mueller’s Authority to Prepare an Interim Report
It is unclear whether or why Mueller has the authority to prepare an interim report on obstruction. Section 600.8(c) of the special counsel regulations provide (with my emphasis):
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.
Perhaps Mueller could construe a report on obstruction as part of a decision to decline to prosecute the president, thereby satisfying the second italicized phrase. But how would Mueller’s contemplated interim report be consistent with the regulation’s insistence that the report come “at the conclusion of the Special Counsel’s work”? Mueller might interpret the phrase “conclusion of … work” not to mean the conclusion of his entire investigation but rather the conclusion of his work on particular slices or stages of the investigation. Perhaps he sees the obstruction investigation (if it is that) as collateral to the original Russia counterintelligence investigation. And perhaps Rosenstein has, unbeknownst to the public, even authorized it as a separate investigation. If so, then the separate obstruction investigation might be coming to an end, and a report on that matter would fit naturally within the language of Section 600.8(c).
Another possibility is Section 600.8(a)(2). It concerns the special counsel’s budget, and provides: “90 days before the beginning of each fiscal year, the Special Counsel shall report to the Attorney General the status of the investigation, and provide a budget request for the following year.” Perhaps this provision authorizes Mueller to “report” to Rosenstein, in the middle of his investigation, about (among other things) the “status” of the obstruction component of the investigation as part of his budget request for fiscal year 2019. I believe that the new fiscal year begins on Oct. 1. If this theory is right, Mueller would officially “report” to Rosenstein on obstruction (and everything else in the investigation) 90 days earlier, around July 1. That would be a convenient date.
A third possibility for a Mueller report on obstruction is Section 600.8(b), which states that the “Special Counsel shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” Mueller’s conclusions about the president and obstruction might seem to count as a “significant event” warranting an “urgent report” to the attorney general under Justice Department guidelines. But what Mueller seems to have in mind is more elaborate and studied than the “brief” and conclusory emergency document that the guidelines contemplate. So that basis doesn’t work. An even less plausible basis for a Mueller report is Section 600.7(b), which provides that the acting attorney general “may request that the Special Counsel provide an explanation for any investigative or prosecutorial step.” Maybe Mueller could, in a report to Rosenstein, “explain” the evidence for obstruction and his reasons for deciding not to indict the president, perhaps because of the Office of Legal Counsel ruling that such an indictment would be unlawful. But this provision is designed as a mechanism for control over the special counsel so that the attorney general can decide that the step taken is “so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” It is not a basis for a report on the investigation.
- Sending the Report to Congress or Making it Public
Under every conceivable mechanism or authority for a special counsel “report,” Mueller would not make the report immediately public, but rather would send it to acting Attorney General Rod Rosenstein. (As Maddie McMahon and I recently explained, Section 609’s contemplation of “releases of information by … the Special Counsel” does not refer to reports of the type now under discussion.) Under Section 609(a) of the special counsel regulations, Rosenstein is expressly authorized to notify Congress about the special counsel, with explanation, in only three instances:
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsel’s investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.
None of these provisions appears to authorize an interim special counsel report to Congress. Also, under Section 609(c), Rosenstein is only authorized to release “these reports” to the public—i.e. the reports that he can send to Congress. So the regulations do not appear to contemplate or authorize the acting attorney general to transmit to Congress or the public an interim Mueller report.
But maybe Rosenstein is not bound or limited by these regulations at all. Recall that Rosenstein did not appoint Mueller pursuant to the Special Counsel regulations. Rather, he appointed him pursuant to his general appointment and related authorities under 28 U.S.C. §§509, 510, and 515. It was only at the very end of his Order appointing Mueller that Rosenstein incorporated by reference the special counsel regulations. It stated that the special counsel regulations “are applicable to the Special Counsel,” and not to Rosenstein. So perhaps Rosenstein thinks he is not bound by the careful limits on transmitting or publishing special counsel reports outlined in the special counsel regulations. If so, he might have a freer hand, consistent with law (such as Rule 6(e) of the Federal Rules of Criminal Procedure) and Justice Department policy, to issue any interim report that he receives from Mueller. And perhaps Rosenstein would see his conveyance of Mueller’s obstruction report to Congress as akin to an impeachment referral. I don’t think anything in Justice Department regulations contemplate a referral of this sort. But as Quinta Jurecic and Benjamin Wittes explained, there is precedent for it going back to Leon Jaworski’s referral to Congress of impeachment material related to Richard Nixon.
So there are plausibly lawful routes for Mueller to draft an interim report on obstruction and for Rosenstein to report it to Congress or release it to the public. But as the very technical arguments above suggest, these plausibly lawful routes are not obvious on the face of the regulations that govern the Mueller investigation, and they depend on facts the public does not know. As a result, I fear that, in our highly politically charged environment, many people will see an interim report or impeachment referral as loophole-exploiting at best and unlawful at worst. As Maddie McMahon and I wrote previously, “On such a deeply contested issue, it is also vitally important that Rosenstein and Mueller disclose the truth in ways that are legally uncontroversial.” Issuance of an interim report or impeachment referral about obstruction might not meet that criterion.