Since taking power in the House of Representatives, Democratic leadership has had a singular response to questions about whether President Donald Trump should be impeached: Let's wait until Special Counsel Robert Mueller files his report.
But as I have previously argued, this response is a huge mistake.
And after the hearing of William Barr before the Senate as a part of his confirmation to become the next attorney general, the folly of placing so much weight on the "Mueller report" is being revealed.
Barr, though in many ways a troubling nominee, correctly informed senators that the "Mueller report" — as defined by the Justice Department regulations — is not designed to become public. The special counsel is required to submit a confidential report to the attorney general about why the decisions to indict and not to indict certain people were made. If a report is then sent to Congress or made public, it will be at the attorney general's discretion. So, assuming Barr is confirmed, and assuming he doesn't recuse, the "Mueller report," such as it is, will actually be the Barr report.
But even if there is a Barr report, it may not be the most interesting part of the puzzle.
As reporter Marcy Wheeler has long argued, Mueller's "report" is already public. He has made his report in the indictments he has filed, which have sometimes include much more detail than is necessary, apparently for the purpose of telling the story to the public of Russia's interference in the 2016 election. These are often known as "speaking indictments."
Wheeler argued Wednesday that recent media reporting suggesting Mueller's "report" is coming soon may actually refer to a new indictment, particularly in light of the fact that the special counsel has requested that Michael Cohen's upcoming testimony before Congress avoid touching on topics surrounding the Russia investigation.
That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).
Another part of the special counsel's regulations may also produce a compelling report. If Mueller chooses to indict someone, and the attorney general overrules this decision, the attorney general is then required to issue a report to Congress explaining why he made the decision to overrule.
As former Acting Solicitor General Neal Katyal, who helped draft the special counsel regulations, has explained, this fact actually places a finger on the scale for Mueller to recommend indicting President Donald Trump, assuming he has found incriminating evidence. This would force the attorney general's hand — he would almost certainly deny the request, but he would be legally compelled to inform Congress of Mueller's conclusion, which would be damning. If Mueller had no other way to get his conclusions public legally, this may be his trump card, as it were.
Even if Mueller doesn't reveal his findings and conclusions through these methods, there are other avenues for the public to learn the truth. The Senate Intelligence Committee had been investigating the Russia issue for nearly two years now, and its probe has been largely kept under wraps. It may reveal much more than we already know.
And if Mueller were to close up shop without a public word or any more indictments (an implausible scenario), Congress would still have the power to have his key witnesses testify. This includes Cohen, who is already on the docket, but also cooperators Michael Flynn and Rick Gates, and even failed cooperator Paul Manafort.
But suppose Mueller does write a summary of his findings, and this report is released, with only minor redactions, by the attorney general. As the New York Times notes, it might not be a particularly incendiary document — it might just be a straightforward recounting of facts Mueller uncovered. These might including new damning bombshells, but many critics of Trump argue that everything we've seen so far already includes more than enough grounds for impeaching Trump. If a "Mueller report" only filled in a few details without any big surprises, it might seem anti-climactic and undermine any justified push for impeachment because expectations were so high.
So it's almost certain that much of Mueller's findings will eventually be revealed. But it's important for Congress and the public not to expect it to be wrapped up in a bow and placed on their doorstep. Mueller will keep doing his work — but it's the country that need to hold Trump accountable.