Mueller report ‘will be public’: Author of DOJ’s special counsel rules explains the ‘important weapon’ for public’s right to know
Special counsel Robert Mueller’s final report will be made public, attorney Neal Katyal explained on Wednesday.
Katyal served as acting Solicitor General during the Obama administration. In a previous Department of Justice role, Katyal drafted the DOJ’s rules governing special counsel investigations.
He explained how the regulations were written with “a safeguard to prevent a cover-up” that could stymie Trump’s hope for a get-out-of-jail-free card.
“Bottom line: the President can try to hide the Mueller Report,” Katyal concluded. “He will lose to the public’s right to know.”
Read the full thread:
THREAD ON WHETHER MUELLER REPORT WILL BE PUBLIC, AND @washingtonpost STORY ABOUT TRUMP HIRING MANY NEW LAWYERS TO ASSERT EXEC PRIVILEGE.
Short Answer: It will be public.
— Neal Katyal (@neal_katyal) January 10, 2019
1.The special counsel rules, which I drafted at DOJ 20 years ago, contemplate 2 kinds of reports. One is a report from Mueller to the AG, at the close of his investigation: “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
— Neal Katyal (@neal_katyal) January 10, 2019
2. That document is to be confidential. But there is a second, separate reporting requirement, which forces the AG to notify Congress “with an explanation for each action…upon conclusion of the Special Counsel’s investigation, including…
— Neal Katyal (@neal_katyal) January 10, 2019
3. … a description and explanation of instances (if any) in which the AG concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
— Neal Katyal (@neal_katyal) January 10, 2019
4.That report must explain why the investigation has concluded, and any instance in which the AG overruled the Special Counsel. The provision was designed to ensure “Congressional and public confidence in the integrity of the process.”
— Neal Katyal (@neal_katyal) January 10, 2019
5.Notably, we wrote the circumstances for an AG to overrule a Special Counsel very tightly—it has to violate “established Departmental practices.”
— Neal Katyal (@neal_katyal) January 10, 2019
6. So, to take one hypothetical example, generic DOJ opinions about whether a sitting President could be indicted do not create an “established Departmental practice” about whether an individual could be indicted for successfully cheating in a Presidential election.
— Neal Katyal (@neal_katyal) January 10, 2019
7.There is no DOJ established practice that says if a Presidential candidate cheats enough and wins the Presidency, that he gets a get-out-of-jail-free card.
— Neal Katyal (@neal_katyal) January 10, 2019
8.There is one other important aspect to the regulations. If a Special Counsel is worried that the AG may cover something up, the regs give him an important weapon.
— Neal Katyal (@neal_katyal) January 10, 2019
9.Because they require a mandatory report to Congress about any instance of the AG overruling a Special Counsel, they put the thumb on the scale of a Special Counsel telling the AG he will take a sensitive act and waiting for AG to say no. That triggers the reporting requirement.
— Neal Katyal (@neal_katyal) January 10, 2019
10. It is a safeguard to prevent a cover-up, it creates a mandatory report to a separate and coequal branch of govt. So that is why I believe Mueller has a move left to play if Whitaker or Barr (if confirmed) try to stymie him and his full report.
— Neal Katyal (@neal_katyal) January 10, 2019
11. Now the President can try to claim executive privilege. Nixon tried that, it didn’t turn out so well. He got crushed in the Supreme Court. Trump’s claim appears even weaker—much wont even concern presidential deliberations&the part that might (Comey) has been waived by Trump.
— Neal Katyal (@neal_katyal) January 10, 2019
12.And here, there is another problem: Trump’s legal team has been saying they don’t think a sitting President can be indicted.
— Neal Katyal (@neal_katyal) January 10, 2019
13. Leaving aside the point above in (6) and (7), the only way that claim makes any sense is if the President must be impeached first. Every real scholar who says a sitting President can’t be indicted couples that with a view that impeachment is the remedy.
— Neal Katyal (@neal_katyal) January 10, 2019
14. So if the President asserts the view he can’t be indicted, he has to allow the turnover of all investigative material to Congress. Otherwise he would be no different than King George III, literally above the law.
— Neal Katyal (@neal_katyal) January 10, 2019
15.This point is fleshed out in my NYT op-ed below. The key point is that even if you think Trump won't be indicted, his legal claims about his immunity from indictment set up&invite the launch of impeachment investigation+eviscerate his exec priv claims. https://t.co/rbZqNUfu2o
— Neal Katyal (@neal_katyal) January 10, 2019
16. Bottom line: the President can try to hide the Mueller Report. He will lose to the public’s right to know.
— Neal Katyal (@neal_katyal) January 10, 2019
2020 Election
Trump’s Georgia rally will be a ‘grievance-fest’ and he’ll ignore the GOP’s Senate candidates: Republican insiders
According to a report from the Independent, Georgia Republicans are nervously eyeing Donald Trump's planned rally in their state late Saturday having no idea whether he will lend them a hand holding onto the two seats in the U.S. Senate or whether he will spend the time ranting about the election he believes was stolen from him.
With both Republican Senators David Perdue and Kelly Loeffler's seats at stake -- as well as control of the U.S. Senate -- Republicans have been working overtime to correct the impression that voter fraud led to the state's 16 Electoral College votes going to former Vice President Joe Biden and cost Trump a second term.
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