This post was updated at 6:45pm US Eastern time.
Special counsel Robert Mueller’s report on Russian interference in the 2016 US presidential election has been delivered to attorney general William Barr, who said he could turn over his account of Mueller’s findings to Congress as soon as this weekend.
Mueller was appointed by deputy attorney general Rod Rosenstein in May 2017, after Donald Trump’s first attorney general, Jeff Sessions, recused himself. Mueller’s investigation has so far led to 34 people and three companies being indicted; six are Trump associates with direct links to his campaign or his administration, with five sentenced to prison on charges ranging from conspiracy against the United States to money laundering. Twenty-six Russians are among those charged.
Trump continues to insist he welcomes the report’s public release, adding new flourishes with each mention. In prefacing his latest remarks on the Mueller probe today (March 20), the Associated Press wrote that “Trump went on to mischaracterize the effort” when he told reporters: “It’s sort of interesting that a man out of the blue just writes a report.”
Trump went on to say, “I had the greatest electoral victory, one of them, [in] the history of our country. Tremendous success. Tens of millions of voters. And now somebody’s going to write a report, who never got a vote. So we’ll see what the report says. Let’s see if it’s fair.”
Not all experts are convinced the special prosecutor’s report will be released in anything near a complete way. Georgetown Law professor Martin Lederman, who served twice in the Justice Department’s Office of Legal Counsel, wrote in a recent Washington Post op-ed that he thinks the Mueller report “probably won’t see the light of day.” The special counsel’s probe is just one of several federal investigations involving Trump, and the others, Lederman maintains, may be more revealing and have more impact.
A February poll by the Washington Post found more than 80% of Americans want the entire report to be made public. And as the Wall Street Journal editorial board wrote, Barr “probably has no choice but to release nearly all of the report” or face accusations of a coverup. A new poll from the Associated Press and the NORC Center for Public Affairs Research found that six in 10 Americans have “at least some confidence in the fairness of the investigation.”
A House resolution passed by a vote of 420-0 calls for the Mueller report to be released “in full” to Congress and to the public, along with details of why indictments weren’t pursued against certain individuals—information that is generally not released.
The Senate hasn’t voted yet on whether to release it because Lindsey Graham, the South Carolina Republican, blocked it from the floor. Graham said he was making a “political point” and wants the FBI to release information about the investigation into Hillary Clinton’s emails at the same time.
Trump maintains he is in favor of releasing the entire report even as White House lawyers contemplate how “to claim executive privilege over information drawn from documents and interviews with White House officials,” CNN reported, citing anonymous sources. (Both Democratic and Republican presidents have used the assertion of privilege to limit disclosures to Congress.)
Eric Posner, a University of Chicago Law School professor who has written extensively on Mueller, Barr, and the Trump probe, told Quartz he thinks Barr will release the full Mueller report “with some redactions where warranted by privacy or investigative considerations.”
“My instinct is that a report of some kind will be released,” said Posner, cautioning that Barr “can do whatever he wants.”
Barr promised lawmakers he would “provide as much transparency as I can, consistent with the law.”
According to the federal code, the report Mueller submitted to Barr, is, per Justice Department rules, considered confidential.
Barr will now notify Congress that the special counsel’s probe is over. He is bound to reveal to legislators what, if anything, the department prevented Mueller from pursuing. He also now decides how much, or how little, of the report to release.
Here’s what the rules say Barr is required to do:
- Provide an “explanation” of what Mueller found to the chair and ranking member of the House and Senate judiciary committees
- Describe any of Mueller’s “proposed actions” that he overruled
Barr is permitted to release the report publicly “to the extent that release would comply with applicable legal restrictions.” According to CNN, Barr will submit his own “summary” of the Mueller report to Congress.
During his confirmation hearings, Barr told senators he would withhold information that was classified, subject to executive privilege, or was part of grand jury proceedings. Barr also said the Justice Department would not release derogatory information about any so-called “unindicted co-conspirators,” a cohort which could include the president.
If Mueller has developed evidence of crimes committed by the president but does not seek an indictment against him, we likely won’t hear any officially issued words on specific wrongdoing by Trump as long as he occupies the Oval Office. (This question is far from settled and there is in fact no specific policy preventing a sitting president from being charged.)
Justice Department guidelines generally preclude public disclosure of details regarding uncharged conduct and explanations of why certain investigative targets were not indicted. In 2000, the department declared that the “indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
The department is not expected to put forth an opinion about whether Trump should face criminal charges, according to former federal prosecutors. Too much time has passed, as John Marston, a onetime assistant US attorney, wrote for The Hill: “I doubt the special counsel would sit on incredibly clear evidence of crimes, the kind sufficient to bring criminal charges, and not at least prepare a report to Congress on an expedited basis to seek to relieve us of an active provable international conspirator on the job.”
The Justice Department is required to brief the House and Senate intelligence committees on Mueller’s investigation into whether or not Trump has been compromised in any way by a foreign power.
This, say some legal scholars, may be the most important “report” of all. It will be up to the committee chairs, senator Richard Burr, a North Carolina Republican, and congressman Adam Schiff, a California Democrat—a man Trump has gleefully derided on Twitter—to decide how much of it to publicly reveal.
Devin Nunes of California, the ranking Republican on the House intelligence committee and an ardent Trump supporter, told the Conservative Political Action Conference in Washington, DC that he wanted Barr to release all of Mueller’s evidence.
Congressional committees have a long history of leaking information for political gain, and some or all of the report could be released to news media in this way.
The Justice Department also will brief the House and Senate judiciary committees on the Mueller investigation.
Rudy Giuliani, Trump’s personal attorney, has insisted upon reviewing the Mueller report before any of the information it contains goes to Congress. He further warned that Trump’s legal team could invoke executive privilege to withhold certain details.
“Of course we have to see [the report] before it goes to Congress,” Giuliani told The Hill earlier this year. “We have reserved executive privilege and we have a right to assert it. The only way we can assert it is if we see what is in the report.” (Asked during his confirmation hearings whether Trump’s team could correct the report before its release, Barr said this “will not happen.”)
House judiciary committee chair Jerrold Nadler, a New York Democrat, has insisted that it would be “unacceptable” for the Trump camp to edit out any information and threatened to subpoena Mueller and his report.
Trump could then instruct the Justice Department not to comply, which would set off a legal battle likely to reach the Supreme Court.
Mueller has not made any public statements about the probe he has been directing for the past two years.
Last year, journalist and historian Garrett Graff (who at that time thought Mueller’s “endgame may be in sight”) argued that the “Mueller report” was actually taking shape in the form of the special counsel’s voluminous court filings. It’s “already right out there in the public record, in the many grand jury indictments and other court filings that already are, or soon will be, widely available,” he wrote.
Broadly speaking, Mueller has been looking into two specific things: collusion and obstruction.
Regarding collusion, Mueller has investigated include the numerous contacts between people linked to Trump’s campaign—his son Donald Jr. and now-convicted former campaign chair Paul Manafort among them—and those linked to the Russian government, alleged Russian efforts to swing the 2016 election in Trump’s favor, and the theft and subsequent leaks of emails involving prominent Democrats.
On obstruction, Mueller has looked into whether or not Trump dangled pardons to associates in exchange for not incriminating him, Trump’s firing of government officials he found insufficiently loyal to him, including former FBI director James Comey—who oversaw the beginning stages of the Russia probe—and Trump’s alleged role in crafting a false statement by Donald Jr. in an attempt to explain away a meeting he had at Trump Tower during the 2016 campaign with a Russian lawyer connected to the Kremlin.
Democrats, who hold a majority in the House, are expected to build expanded lines of inquiry upon whatever they see of the Mueller report.
“I can’t imagine that the special counsel is not going to release something that shows a roadmap for the House to investigate a conspiracy,” former Trump campaign adviser Sam Nunberg told MSNBC last month.
House Democrats have already opened investigations into what they describe as Trump’s abuses of executive power, including his attacks on the courts, the FBI, and the press, Trump’s past business dealings, and the Russian collusion Trump so vehemently insists never took place.
“If there is going to be peace and legislation, there cannot be war and investigation,” Trump said during his State of the Union address in February, suddenly calling for bipartisan cooperation on important issues. “It just doesn’t work that way.”
Or maybe it does.