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Over the weekend, Jon Lovett—a former speechwriter for President Obama and a fixture of the Pod Save America podcast—tweeted an interesting question:
Question I don’t know the answer to - is it possible that we won’t at some point know whatever Mueller knows?— Jon Lovett (@jonlovett) March 17, 2018
Later, on the show itself, he and his cohosts discussed the matter. “It’s an open question,” Lovett said. “But the further along we get, the harder it is for Donald Trump to make it so we don’t find out the total sum of everything that’s been investigated so far.” Even if some details remain classified, the hosts agreed, Mueller’s overall conclusions are likely to become public.
Lovett is correct that it’s an open question, but he’s actually understating the possibility that Mueller’s findings could remain under wraps. 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.
There are a number of possible models for Mueller in that self-imagination, each of which would imply an entirely different approach to reporting, either to the public or to Congress, on his findings. His predecessors have taken radically different approaches to the question of the role of the special prosecutor as a reporter of his findings—and they have operated as well under different legal obligations and constraints, different both from each other and from Mueller.
To date, Mueller has given few hints of how he sees his role. Yet on very few questions—other than the facts of what he turns up—does more depend.
So far, Mueller has behaved like a traditional prosecutor. He has not made public statements beyond what he has argued in court. What the public has learned about his findings—at least what it has learned from Mueller’s shop—it has learned when he indicted people or reached plea agreements and facts emerged in the context of their prosecutions. This is the orthodox approach to federal prosecution. Prosecutors, after all, are not reporters. And federal investigations are not truth commissions. Remember the anger among many current and former federal prosecutors directed at then-FBI Director James Comey for announcing and discussing the evidence following his decision not to pursue charges in the Hillary Clinton email investigation. Normally, when prosecutors finish an investigation and don’t bring charges, they say nothing, and the evidence they have collected stays secret. As one of us wrote at the time of Comey’s comments on the Clinton email matter in July of 2016,
There is something horrible about watching a senior government official, who has used the coercive investigative capacities of the federal government, make public judgments about a subject's conduct which the Justice Department is not prepared to indict. . . . As a general matter, when prosecutors and investigators decline to indict someone, we don't want a report, much less congressional oversight of the unindicted conduct. We want them to shut the heck up.
If Mueller follows the orthodox path—and the reaction to Comey’s behavior might well militate towards orthodoxy—we will only learn what Mueller knows if it produces indictments. We will learn about the extent of “collusion” or about possible obstructions of justice only to the extent his team concludes that the activity violated some federal criminal law and to the extent the team believes it can prove that violation beyond a reasonable doubt using admissible evidence. Short of that, the investigation will wind down and shut up and we’ll have to rely on congressional investigators, civil litigation, and historians for a narrative account of what actually happened. Those who were outraged by Comey’s disclosure and evaluation of the evidence in the Clinton matter should pause a moment to understand that this same behavior is precisely what they are now seeking from Mueller.
But there are, of course, other models. In the past, special prosecutors have issued reports of various sorts detailing their findings, including their findings as to unindicted subjects. Broadly speaking, at least in the modern era, these reports have taken two forms: final reports of the investigation, and referrals to Congress of material that might be grounds for impeachment.
In 1974, the office of Watergate Special Prosecutor Leon Jaworski transmitted a referral of impeachment material related to President Richard Nixon to the House Judiciary Committee. Jaworski later characterized the document as a “road map”: 55 pages of bare-bones factual information intended to point committee members to the relevant evidence so they could draw their own conclusions. Along with the “road map,” Jaworski included the evidence itself: 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.”
The “road map” has never become public, as it contained grand jury information, which prosecutors are forbidden from disclosing under the Federal Rule of Criminal Procedure 6(e). But it was not a full report—neither an evaluation like Comey’s statement about the Clinton email evidence nor an effort to characterize the narrative. It was simply a guide to the evidence that Jaworski was transmitting. The idea was that the prosecutor had uncovered evidence that the House Judiciary Committee needed to see to fulfill its own constitutional obligations to consider impeachment, so Jaworski sent over the evidence and provided a kind of table of contents for it.
We know what the document looked like because James Doyle, Jaworski’s press secretary, described it in his book on the Watergate investigation, “Not Above the Law”:
It was a simple document, fifty-five pages long, with only a sentence or two on each of the pages. Each page was a reference to a piece of evidence—sentences from one of the tape recordings, quotations from grand jury testimony…
This is how the road map worked. One page might say, “On March 16, 1973, E. Howard Hunt demanded $120,000.” Then it would list page references to grand jury testimony from witnesses who saw Hunt’s blackmail note and references to the tapes where Hunt’s demand was discussed. The grand jury transcripts and the tape transcripts would be included…
The strength of the document was its simplicity. An inexorable logic marched through its pages. The conclusion that the President of the United States took part in a criminal conspiracy became inescapable.
The decision not to include any analysis in the referral came from Jaworski himself. Two years after issuing the referral, he wrote in his memoir “The Right and the Power”:
The report—called the “road map” in our office—was not compiled without some stress and warm debate. Some of the staff members of the Watergate Task Force felt strongly that evidence they regarded as inculpatory of Nixon should be so designated. I was convinced this would be a mistake. The courts, I believed, would not permit any such material to be transmitted to the Committee. The success of the plan depended on our ability to spell out simply the facts of the cover-up story as they appeared from our investigation and let the Committee members reach their own conclusions.
Jaworski’s decision to issue the referral in the first place was likewise entirely his own. The Justice Department order under which he was appointed by Acting Attorney General Robert Bork mentioned nothing about an impeachment referral, though it did allow the special prosecutor to “from time to time make such public statements as he deems appropriate” and required the prosecutor to submit a final report to Congress at the end of the investigation. (That report was eventually released in 1977, after Jaworski’s departure.)
Jaworski instead received approval to transmit the referral from the chief judge of the United States District Court for the District of Columbia, John Sirica, who relied on the common law powers of the grand jury to issue reports in allowing the referral to go forward. Because the referral contained grand jury information, Sirica also had to rule that “principles of grand jury secrecy do not bar this disclosure” in order for the document to be released.
Mueller, like Jaworski, has no specific obligation to report impeachable material to Congress. The regulation governing his activities under his appointment by Acting Attorney General Rod Rosenstein says nothing about impeachment referrals one way or the other, only requiring Mueller to write a final report to Rosenstein and leaving to the latter the decision whether and how to make anything public. In other words, if Mueller imagines himself as a traditional prosecutor with some additional obligation to transmit evidence of potentially impeachable offenses to the relevant constitutional actor, he could follow Jaworski’s example and dump the record in Congress’s lap with a spare road-map-like document. Presumably, he, like Jaworski, would have to go through the judge presiding over the grand jury to release information protected by grand jury secrecy rules. But note that Mueller appears to have conducted a large percentage of the current investigation not in front of the grand jury but by FBI interview. This might make him freer, as Comey was on the Clinton email matter, to discuss his findings without the permission of the court.
Then there’s the Ken Starr model. Starr had a particularly grandiose vision of the truth-reporting role of the special prosecutor. But separate from Starr’s particular understanding of the law, the role itself had morphed by the time he investigated Bill Clinton. For one thing, the final report was now a matter of law: It required that the independent counsel to “before the termination of the independent counsel’s office . . . file a final report . . . setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought.” What’s more, a different provision of the independent counsel law required that Starr refer to Congress any information that might be grounds for an impeachment: “An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.”
One of us argued in a 2002 book that Starr let the truth-reporting role associated with the independent counsel law overwhelm the rest of the law. Indeed, Starr and his successors as independent counsel issued factually-rich narrative accounts of the Vince Foster suicide, the White House Travel Office Affair, a now-forgotten scandal about FBI files, Whitewater, and—of course—Starr’s impeachment referral to Congress over the Monica Lewinsky matter.
Whether Starr was justified in doing so is not, for present purposes, relevant. The key point is that he adopted a deeply different vision of his role than Jaworski took—one that was much further from the orthodox view of the federal prosecutor’s function. Starr saw the public reporting function as integral to the function of the independent counsel. And critically, he didn’t merely report to Congress on the President’s conduct. He crafted the report as a detailed narrative that also contained lengthy evaluations of the evidence with reference as possibly impeachable offenses. Starr did not make this report public—a fact long forgotten—and its transmission to Congress, along with the mountain of grand jury information it contained, was authorized by the special court that appointed him under the old law. But Congress quickly released the document in its entirety. And the result was that the impeachment referral provision—meant to enshrine in law a requirement that independent counsels behave as Jaworski did—came to function in a very different way: as a vehicle for the special prosecutor to issue a detailed, evaluative narrative document that both reported the truth as the investigation found it and evaluated it against the law. A number of independent counsels used the final report requirement in similar fashions.
Neither of these reporting requirements remain in the regulations that govern Mueller, but neither do the relevant regulations preclude Mueller from behaving as Starr did. As we read the regulations, rather, Mueller can do any kind of reporting that he wants, provided that Rosenstein—who, by the way, worked for the Starr investigation once upon a time—is comfortable with his activity and the district court approves the release of any grand jury material. In other words, if Mueller has a truth-commission view of his role and Rosenstein tolerates it, a capacious report or set of reports, either to Congress or to the public, is certainly a possibility. It is neither required nor forbidden under the rules in force today.
There’s still another possibility if Mueller is truth-commission oriented. Writing on Lawfare, both Paul Rosenzweig and Andrew Kent have proposed the use of a special grand jury under 18 U.S.C. § 3331 to issue a public report on Russian election interference. Unlike regular grand juries, special grand juries have the power not only to examine misconduct but also to make their findings public, albeit with court approval and after notifying the individuals named in the report and allowing them to respond. While convening a special grand jury usually requires an order from the attorney general or acting attorney general, such a jury may also be empaneled independently in “a judicial district containing more than four million inhabitants”—which, as Kent notes, describes the Southern District of New York, where Trump Tower is located.
Reports issued by special grand juries don’t have to be confined to criminal wrongdoing: § 3331(a)(1) allows for reports on “noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee.” But while the provision’s focus on wrongdoing by public officials would encompass a hypothetical Mueller report on, say, obstruction of justice by President Trump, it could make for an awkward fit with public disclosures on any activity that took place before the election, such as coordination with the Russian government during the campaign season.
Alternately, as Kent argues, Mueller might have greater leeway if he decides to rely on the common law powers of a regular grand jury to issue a wider-ranging report. As Sirica described in his order allowing the release to Congress of Jaworski’s impeachment referral, there’s a rich common law tradition of grand juries releasing public reports on misconduct by public officials or other matters of public concern.
To put the matter bluntly, it all boils down to how Mueller sees himself and his role. How does he? We have no idea. His history as a cautious and conservative actor—not to mention the outrage sparked by Starr and Comey’s more aggressive interpretations—would suggest a certain degree of orthodoxy. What’s more, his and his team’s utter silence outside the courtroom suggests a vision of the special counsel role narrowly focused on the work of investigation and prosecution to the exclusion of almost any public statements whatsoever.
Yet if any situation has ever begged for a truth-commission understanding of the role, L’Affaire Russe cries out for a capacious public reporting function. The questions it raises are sweeping and implicate not just presidential conduct but the integrity of an American presidential election. The question may boil down to how urgent Mueller feels the need is for Congress, or the public, to understand what happened—and also the extent to which he can play the needed public education role simply using the tools of the conventional prosecutor.