Published by The Lawfare Institute
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Once the midterms are past, Americans can resume their reveries about a hypothetical report from the special counsel’s office. There’s no telling how much Robert Mueller knows, but onlookers can speculate about how much the country is likely to find out and how it’s likely to do so. A Mueller Report? A Rosenstein Report? An Impeachment Report? All three? Although some of the issues raised by these notions are familiar, they’re worth revisiting during this lull of attention to the Mueller investigation, in the context of law and regulation rather than hope and fear, and without the summertime chaff of misfired forecasts.
A couple of caveats. First, lots of legal issues remain murky. For instance, Jack Goldsmith has suggested that because of the manner of the appointment, the Justice Department special counsel regulations may apply to Mueller but not to his boss, Deputy Attorney General Rod Rosenstein. That might make it easier for Rosenstein to release information from the investigation. Second, Mueller and his monolithically tight-lipped staff have surprised Americans before. They may do it again. Accordingly, take these predictions, and all others about the Russia investigation, with a grain of salt.
That said, here’s my take on the reports that Mueller and Rosenstein may prepare and the odds that the public will see them.
- There will be a Mueller Report. Justice Department regulations require a special counsel, at the end of the investigation, to prepare “a confidential report explaining the prosecution or declination decisions” and submit it to the attorney general—here, because of Attorney General Jeff Sessions’s recusal, Rosenstein.
- The public probably won’t see it. At least not the full, unredacted version. In developing the current regulations, the Justice Department aimed to avoid the perceived missteps of the Ethics in Government Act, under which independent counsels such as Lawrence Walsh and Kenneth W. Starr operated. The independent counsels’ final reports ordinarily got released to the public, which “provide[d] an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and create[d] potential harm to individual privacy interests,” according to the Justice Department’s explanation for its new regulations, published in the Federal Register in 1999. Under the regulations, a special counsel’s final report is not for public release; it’s “a confidential document,” the same as “internal documents relating to any federal criminal investigation.”
- There probably will also be a Rosenstein Report. The regulations require the attorney general to inform the chair and ranking minority members of the House and Senate Judiciary Committees when a special counsel has finished the job. If he follows the regulations, Rosenstein won’t provide a full accounting. Instead, according to the Federal Register, he’ll submit just a “brief notification, with an outline of the actions and the reasons for them.”
- The Rosenstein Report probably will be made public, but it’s not a sure thing. Under the regulations, the attorney general gets to decide whether to release the reports submitted to the judiciary committees. If the Justice Department didn’t release Rosenstein’s report, of course, Congress could do so on its own initiative.
- Rosenstein may be disinclined to disclose much information. “[O]ur default position is that when there’s a Justice Department investigation,” Rosenstein told a Senate hearing in 2017, “we do not discuss it publicly.” Remember, he is the guy who provided justification for the firing of James Comey as FBI director. Comey’s public statements about the inquiry into Hillary Clinton’s emails, wrote Rosenstein, constituted “a textbook example of what federal prosecutors and agents are taught not to do.” Further, Rosenstein may believe that people will (or ought to) trust Mueller’s decisions because they trust Mueller. At the 2017 hearing, Democratic Sen. Kamala Harris of California urged Rosenstein to grant Mueller full independence in the Russia investigation, with no oversight by anyone at the Justice Department. Rosenstein indicated that such an arrangement was unnecessary. “[Y]our assurance of his independence,” he told Harris, “is Robert Mueller’s integrity and Andy McCabe’s integrity and my integrity....” (Rosenstein may now have a different take on McCabe, who was fired from his job as deputy director of the FBI in March for lack of candor in his interviews with the Justice Department inspector general regarding having improperly leaked information to the media.) In Rosenstein’s mind, perhaps rectitude can substitute not just for independence, as he argued in the hearing, but also for transparency. People should trust Mueller’s conclusions because he’s Mueller, under this theory, not because he shows his work. An additional factor arguing for taciturnity is grand jury secrecy. More on that below.
- If there’s an Impeachment Report, it probably will be something different. Neither the Mueller Report nor the Rosenstein Report would seem an apt vehicle for summarizing evidence that may give rise to presidential impeachment. The Mueller Report is likely to have too much detail about prosecutorial decision-making and unindicted wrongdoing, and the Rosenstein Report won’t have much detail at all.
- Mueller won’t prepare an Impeachment Report without Rosenstein’s authorization. Justice Department regulations require a special counsel to notify the attorney general whenever “significant events” arise in the investigation, ordinarily at least three days in advance. It’s hard to imagine anything more significant than the release of evidence that may warrant impeaching a president. Importantly, notification in this context means consultation. “A Special Counsel will be dealing with issues that are sensitive, with many possible repercussions, and experience has shown that such prosecutions are often as sensitive legally as they are politically,” says the Federal Register explanation from the Justice Department. “Given this sensitivity, notification of proposed indictments and other significant events in the course of the investigation, with the resulting opportunity for consultation, is a critical part of the mechanism through which the Attorney General can discharge his or her responsibilities with respect to the investigation.” Rosenstein takes those responsibilities seriously. A special counsel isn’t subject to anybody’s daily supervision, but Rosenstein said of Mueller in February: “He reports to me, and I am accountable for what he does.”
- Before releasing an Impeachment Report and accompanying evidence, Mueller would need to address the issue of grand jury secrecy. Under Federal Rule of Criminal Procedure 6(e), a government attorney generally cannot disclose any “matter occurring before the grand jury.” This isn’t some obscure punctilio; violations can be punished as criminal contempt.
- It’s conceivable, though a long shot, that Mueller could prepare the Impeachment Report and accompanying evidence without including material covered by Rule 6(e). Through FBI interviews and other means, prosecutors can gather evidence without a grand jury. But they commonly use the grand jury to “lock in” testimony that implicates someone in criminal activity.
- If the Impeachment Report and evidence do contain grand jury material, Mueller must get a court’s permission before disclosing them. Rule 6(e) requires a court order to release grand jury information beyond the circle of federal law enforcement, with a few exceptions.
- Rule 6(e) doesn’t expressly authorize the disclosure of grand jury material for purposes of presidential impeachment.
- The court might authorize disclosure of 6(e) evidence for a presidential impeachment by invoking common law “inherent authority.” Several courts have taken the position that they have inherent authority to go beyond the strictures of Rule 6(e) and release grand jury information—records relating to the investigation of Chicago Tribune staff members for espionage in 1942, for instance, as well as former president Richard Nixon’s testimony from 1975. “[A] district court retains an inherent authority to unseal and disclose grand jury material not otherwise falling within the enumerated exceptions to Rule 6(e),” Judge Beryl A. Howell ruled in April, granting CNN’s request to unseal some documents from the Starr investigation. Judge Howell’s views matter: As the chief judge of the U.S. District Court for the District of Columbia, she is supervising Mueller’s grand jury in Washington, and she would be the one to rule on any request to disclose 6(e) evidence from the investigation.
- The “inherent authority” argument, however, may flop. The Justice Department maintains that courts are bound by the language of Rule 6(e), with no power to go beyond it. “[T]he Department’s view... is that the Court lacks the authority to unseal grand jury materials for reasons of ‘extreme public interest’ or any other reason outside the reticulated exceptions to secrecy set forth in Rule 6(e),” the Justice Department told Judge Howell in the CNN case. (The Justice Department, by the way, held the same views under President Barack Obama.) Judge Howell rejected the argument. But the Justice Department has taken the “inherent authority” issue to the D.C. Circuit in a different case, McKeever v. Sessions, which was argued on Sept. 21. Judge Howell has entered a stay in the CNN case pending McKeever. Until the D.C. Circuit rules in McKeever, she may be reluctant to authorize any Rule 6(e) disclosures under the inherent-authority rationale. In addition, it might be awkward for Justice Department-appointee Mueller, seeking the release of the Impeachment Report, to invoke a judicial power that the department says doesn’t exist.
- Alternatively, the court might authorize disclosure of evidence under the Rule 6(e) exception for “judicial proceedings.” The Special Division of the D.C. Circuit, which oversaw independent counsels under now-lapsed provisions of the Ethics in Government Act, treated presidential impeachment as a judicial proceeding in the Lewinsky investigation.
- But “judicial proceedings” may not work either. Impeachment “falls outside the common understanding of ‘a judicial proceeding,’” Judge Howell wrote in the CNN case. That comment was dicta, yes. If release of the Impeachment Report hinged on it, she might reach a different conclusion. But she might not.
- Even if the court did authorize release of grand jury information, the disclosure might be limited to Congress. In 1974, Watergate Special Prosecutor Leon Jaworski’s office assembled evidence and a report to aid the House impeachment inquiry. Judge John J. Sirica authorized the handoff. Although he remarked that the circumstances “might well justify” public release of the materials, he lifted the Rule 6(e) veil only for House members and staff. The report, which prosecutors called the “road map,” is still secret 44 years later, though not for much longer.
- President Trump could try to stop release of an Impeachment Report and evidence. In Watergate, former White House aides, under indictment and facing trial, tried to stop the conveyance of grand jury evidence to the House. President Nixon, though, didn’t object, a fact that the D.C. Circuit emphasized in authorizing the transmittal to proceed. A Trump objection wouldn’t necessarily prevent transfer of the evidence, but it would probably slow it down.
- For what I think are compelling reasons, Mueller and Rosenstein may want the House of Representatives to make the first move. During Watergate, the House launched an impeachment inquiry and then asked Jaworski for grand jury evidence. The evidence was essential for the House to perform its “most awesome constitutional responsibility,” said Judiciary Committee Chairman Peter W. Rodino, a responsibility vested “in the House alone.” In the Lewinsky scandal, by contrast, Starr and staff had to puzzle out what might constitute impeachable offenses while the House sat back and waited. “I don’t want us to drive this thing,” the Judiciary Committee's then-chairman, Henry Hyde, told the Boston Globe a month into the Lewinsky investigation. “I want it to be driven by its own momentum, by the independent counsel.” To a remarkable degree, the Lewinsky model seems to have become the norm, with everyone now looking to Mueller for the politically charged initial decision about whether impeachment may be warranted. Reporters and columnists, including Jennifer Rubin of the Washington Post, Jonathan Bernstein of Bloomberg and Walter Shapiro of Roll Call, are asking whether Mueller will “recommend” impeachment. That’s hardly what the Framers envisioned. Impeachment and removal of a president is fundamentally a political act, a “national inquest,” a remedy for “injuries done immediately to the society itself,” Alexander Hamilton wrote in Federalist 65. In counting on Mueller to lead the inquest, people seem to view impeachment as something apolitical and ready-made, like a Blue Apron box. Strict reliance on Mueller raises another problem, too. Impeachment is not the job he was hired to do, not the job he was trained to do and not the job he’s doing. Mueller is a Justice Department prosecutor performing the legal task of investigating crimes, not a congressional aide performing the political task of investigating high crimes and misdemeanors. Statutory crimes aren’t the same as high crimes and misdemeanors. Not all violations of the federal criminal code reach the constitutional threshold, and some acts that don’t violate the law reach the threshold nonetheless. Mueller and Rosenstein may be hoping that Congress will ask for evidence, as in Watergate, and thereby take the responsibility and the political heat for contemplating impeachment. In obsessing over a hypothetical Impeachment Report, Americans are acquiescing in the House of Representatives’ abdication of responsibility. Mueller and Rosenstein might decline to join in.