With the country gripped by anticipation of the transmission of special counsel Robert Mueller’s report to the attorney general, Mueller mania has swept over Washington. Seriously. With no report in sight, this is what the news cycle has come down to: a parody cow’s Twitter account has overtaken a congressman’s, and the commander-in-chief has been preoccupied with a Conway. Such is the state of a town waiting for big news. As the wait continues, we’re rounding up what lawyers are saying about the Mueller report.
It has been 674 days since Robert Mueller was appointed special counsel. Since his May 2017 appointment, the former FBI director and WilmerHale partner has netted nearly three dozen indictments, brought even more criminal charges, and secured the convictions or guilty pleas of members of the Trump campaign or those in the president’s orbit.
But what Mueller reveals next—and when—remains a mystery. Washington is still waiting for the special counsel’s probe to conclude, and for Mueller to transmit a summary of his decisions to bring charges, or declining to bring charges, to Attorney General Bill Barr. What happens after that is even less clear.
The special counsel regulations require Barr to notify Congress once the probe ends. Barr’s past statements leave open the possibility, however, that he could prepare more than one report. He could, for example, prepare one for lawmakers and one for the public. But how little or how much detail the AG would provide in any report is unclear. During his confirmation hearing, Barr vowed to provide as much transparency to the public as possible.
Here’s a look at what some lawyers are expecting (or hoping for) from Mueller and Barr:
>> Ty Cobb, former Trump White House special counsel, told me: “I’ve always expected the report would be professional and conforming with the special counsel regulations, given my respect for Bob. I think it will be treated equally professionally within the Justice Department, and the attorney general will act appropriately in connection with whatever information he provides to Congress and the public... It’s in the hands of professionals.”
But, he added: “I expect that the attorney general will submit a summary, or an explanation of the report, rather than the report itself, given the fact that the regulations governing the special counsel require certain information in the report that DOJ policy normally doesn’t allow to be made public. For example, to the extent the report discusses who was investigated and not charged—typically the Justice Department doesn’t allow that information to be made public.”
>> Mimi Rocah, Pace Law School fellow and former Southern District of New York prosecutor: “I know that there are Justice Department guidelines about not releasing information about people who are not being charged. I just don’t think that those rules should apply here. Because those rules are about the public interest; they exist to protect the public interest, namely. If the Department of Justice is not pursuing its function of charging someone with evidence beyond a reasonable doubt, we should not make the findings that are damaging to those people public. But here, we have a person who literally because of a Justice Department policy, cannot be charged; so we, the public, deserve to know and need to know. The public interest here weighs in favor of transparency…” MSNBC, 3/21/19
>> Neal Katyal, Hogan Lovells partner who drafted the 1999 special counsel rules: “The report is unlikely to be a dictionary-thick tome, which will disappoint some observers. But such brevity is not necessarily good news for the president. In fact, quite the opposite. For months, the president’s lawyers have tried to discredit Mr. Mueller and this report, but their efforts may have backfired. A concise Mueller report might act as a ‘road map’ to investigation for the Democratic House of Representatives — and it might also lead to further criminal investigation by other prosecutors. A short Mueller report would mark the end of the beginning, not the beginning of the end.” New York Times, 2/21/19
>> Marty Lederman, Georgetown University Law Center professor and Just Security founding editor: “The special counsel regulations require the attorney general himself to provide a “notification” to the leadership of the two congressional judiciary committees when Mueller’s investigation ends… Barr’s notification might conceivably consist of only a brief outline explaining why Mueller closed up shop, which is all the regulation formally requires. That’s merely a floor, however, not a ceiling.” Washington Post, 3/17/19