The public and political class are waiting with bated breath for the conclusion of special counsel Robert Mueller’s investigation into Russian interference in the 2016 presidential election. And speculation is rife about what it might or might not say about President Donald Trump.
As Georgetown University law professor Martin Lederman writes in the Washington Post, there is good reason to suspect the Mueller report will be neither as transparent nor as directly incriminating of Trump as his detractors would wish for — but that even if that is the case, that does not mean the report won’t create serious political problems for the president.
Despite the House’s unanimous resolution calling for Attorney General William Barr to make Mueller’s report public, Lederman notes, “The relevant Justice Department regulation provides that Mueller’s report to Barr will be ‘confidential.’ Therefore, Barr probably won’t share it with Congress, let alone the public at-large.” This means the public is unlikely to see, in particular, portions of the report that explain why certain individuals were not charged with crimes, although Barr, like his predecessors in other high-profile Justice Department cases, may choose to summarize this information publicly.
There is also the matter of Barr’s own report to the House and Senate Judiciary Committees. “Barr’s notification might conceivably consist of only a brief outline explaining why Mueller closed up shop, which is all the regulation formally requires,” writes Lederman. “That’s merely a floor, however, not a ceiling … Barr might, for example, provide the judiciary committees with the sort of comprehensive ‘road map’ of facts (accompanied by supporting evidence) that special prosecutor Leon Jaworski gave the House Judiciary Committee during the Watergate investigations — an account, likely drafted by Mueller himself, that would offer extensive and granular details of the evidence and perhaps of Mueller’s evaluative assessments of the evidence, too.” It depends, Lederman notes, on how Barr tries to balance the Justice Department’s typical practice of not damaging the reputation of uncharged individuals, up to and including the president, with the need to keep the public informed on a national scandal.
“The one thing we should not expect to see in Barr’s notification, however, is Mueller’s assessment about whether there are grounds to ask a grand jury to bring criminal charges against President Trump after he leaves office,” says Lederman. “The very reason the Office of Legal Counsel concluded (rightly or wrongly) that the Constitution forbids indictment of a sitting president is that such public charges would subject the president to the ‘stigma and opprobrium’ of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law — a situation that (according to the opinion) might undermine the president’s ‘respect and stature both here and abroad,’ and thus impact his ability ‘to act as the Nation’s leader in both the domestic and foreign spheres.’ The same reasoning presumably would apply to a single prosecutor’s conclusion, not yet confirmed by a grand jury’s finding, of probable cause that the president has broken the law. (Indeed, such a public assessment of criminal culpability might taint the grand jury’s future consideration of the question, which is all the more reason Barr is unlikely to disclose it.)”
But crucially, Lederman adds, even if Mueller does not directly implicate Trump in specific crimes, the report could still hurt him. That is because Mueller’s investigation is, first and foremost, a counterintelligence investigation — and it could reveal a lot about how Trump has been compromised.
“This naturally includes assessing whether, how and to what extent Trump is compromised or is otherwise unable to perform his constitutional duties on behalf of the nation when it comes to matters involving Russia,” writes Lederman. “What explains Trump’s sycophancy to Russian President Vladimir Putin in Helsinki and elsewhere, and Trump’s apparent willingness to believe whatever the Russian leader tells him, even when it contradicts the uniform assessments of his own intelligence agencies? His reluctance to criticize Putin’s regime, even for its assassinations abroad? His repeated efforts to distance himself from U.S. efforts to countermand Russia? His boasting to Russian officials that he’s removed James B. Comey as FBI director to take off the ‘great pressure’ he faced ‘because of Russia’? Trump’s manifest disinterest in addressing the continuing threat to our electoral system? His persistent disparagement of the critically important Russia investigation as a ‘witch hunt? Does Trump have financial obligations to Russian interests? Was he — and does he continue to be — motivated by the prospects of a Moscow Trump Tower? Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence? Or is there a more benign explanation?”
“The counterintelligence investigation’s answers to these and similar questions — especially its possible assessment of the president’s capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s deeply inappropriate conduct in 2016-2017 violated any particular criminal statutes,” Lederman says. “This isn’t remotely an ordinary case … Congress and the public have a critical need to know whether and to what extent the president is compromised and whether he is fit to respond to the Russian threat without fear or favor. It’s therefore safe to assume Mueller will try to convey such information in a form that permits the greatest possible dissemination, consistent with national security imperatives.”