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What to Expect When You’re Expecting the Mueller Report

Some redactions, some scrutiny, and maybe some clues.
April 11, 2019
What to Expect When You’re Expecting the Mueller Report
Special Counsel Robert Mueller. (Photo by Tasos Katopodis/Getty Images)

Attorney General William Barr is expected to reveal in short order the actual report of Special Counsel Robert Mueller’s probe into Russian influence in the 2016 presidential election—with a lot of information redacted.

Whatever shape the public report takes, it will be momentous. Here are five things to look out for:

1) Expect lots of blacked-out text—and a looming court battle over what’s missing.

Although Barr’s four-page summary satiated President Trump’s supporters and Republicans in Congress, the rest of America is well-aware that the devil is in the details. According to an NPR/CBS NewsHour/Marist poll, three-quarters of those surveyed want to see the whole thing. And for good reason. The centerpiece of the Constitution’s structure is accountability for all office-holders, including the president. If he cannot be indicted per an internal Department of Justice policy, then political accountability is the only way.

That said, Barr has indicated that he will redact grand jury material, intelligence sources and methods, materials affecting other ongoing criminal investigations, and information “unduly infringing” upon the privacy and reputation of “peripheral third parties.” He said Tuesday that the redactions will be color-coded based on those four categories. Some of the redactions will stick, some will not.

The grand jury ban on public disclosures is porous. It’s not unthinkable that a federal court—as happened in Watergate and Whitewater—would waive the protections under Rule 6(e) of the Federal Rules of Criminal Procedure in the public interest (or alternatively, a coordinated Congress could override or amend that rule).

It’s hard to imagine that a judge would authorize any action that could legitimately infringe on other criminal investigations or intelligence interests. (Members of Congress can see classified information, though the general public cannot.) That information will stay secret—at least for the time being.

Unindicted third parties are another story. Remember Monica Lewinsky? Her participation in the Clinton sex scandal was described in painful detail in Independent Counsel Kenneth W. Starr’s public report to Congress. Still, Barr is likely to follow DoJ practice and keep anything bearing on unindicted individuals hidden. This is not a small matter, as that list of folks could include high-profile people like Donald J. Trump, Jr., Jared Kushner, and Ivanka Trump—the first two of whom attended the now-infamous 2016 Trump Tower meeting with Russians promising “dirt” on Hillary Clinton. Given the massive historical and political implications at stake, if House Democrats move forward on their threat to subpoena full report, a federal judge might not go along with a Trump appointee’s unilateral redaction decisions. The law allows disclosure of criminal discovery by court order, notwithstanding privacy protections.

For now, expect to see paragraphs—if not pages—of black.

2 ) The public will get a clearer picture of why Mueller found the obstruction call too hard to make.

In his four-page summary letter, Barr disclosed that Mueller did find evidence of obstruction of justice on the part of the President of the United States. What Mueller could not decide is whether that amounted to a chargeable offense that could be proven beyond a reasonable doubt before a jury. Presumably, the wrinkle here is that the potential criminal defendant in such a trial would be the president himself whom, as Barr wrote in a somewhat bizarre memorandum to the White House before his official nomination for attorney general, is in charge of everyone at DoJ—including Mueller.

Here’s a possible legal rub: Absent an actual firing of Mueller, could there have been obstruction if his boss, the president, ultimately stayed out of the way?

The problem with this theory is that the obstruction statutes don’t care if the perpetrator is successful in obstructing an investigation—an intentional attempt to interfere suffices. Moreover, if Trump had fired Mueller, who would have been positioned to charge him with that “completed” offense? Mueller himself would be gone at that point; he was appointed precisely to prevent the president from self-serving mismanagement of a criminal investigation into his own conduct.

Suffice it to say that, at a minimum, we will learn more on the obstruction front. Given that Mueller was equivocal on whether Trump committed a crime here, even a redacted report is sure to contain troubling information for the White House.

3) Barr and Deputy Attorney General Rod Rosenstein will come under intense scrutiny for their decision to step into Mueller’s shoes and declare no obstruction of justice on Trump’s part.

Given Barr’s unsolicited, private-citizen analysis on the president’s potential immunity from an obstruction charge, his decision to reach a conclusion absolving Trump of obstruction where Mueller could not—without simultaneously releasing the data to back up that decision—will likely come back to haunt him once the details of Mueller’s obstruction findings become public. Same goes for Rod Rosenstein, whom Barr cites in his summary as buying into its conclusions.

Rosenstein authored the memo justifying former FBI Director James Comey’s firing on grounds that the president later disavowed. (Rosenstein focused on the mishandling of the Hillary Clinton email investigation, while Trump told NBC’s Lester Holt that it was the “Russia thing.”) Mueller no doubt considered whether the Comey firing was done to obstruct the investigations into Russian interference that the special counsel’s office took over and not to vindicate confidence in the FBI, as the Rosenstein letter indicated. Which was it? That very question is what makes Rosenstein a potential witness in an obstruction probe.

Both Barr and Rosenstein stepped into precarious waters in weighing in on obstruction in such a clipped—and within the Mueller investigation itself, controversial—way. Congressional Democrats will want to know more from these two men. For his part, Rosenstein is to be commended for ably and somewhat heroically initiating the Mueller probe in the first place. A sullied ending of his public service career would be too bad.

4) More clues will come out as to whether federal criminal investigations are still percolating regarding Trump—and possibly Russia.

One of the biggest concerns about Trump and Russia has nothing to do with Russian hacking into DNC and Clinton campaign servers or the related troll campaign to thwart voters’ political views by spreading lies on social media—the two subjects on which Barr reported that Mueller found no conspiracy involving the Trump campaign. It has to do with whether Trump engaged in pay-to-play with the Russians—or other foreign governments—in exchange for favors once in office. The immediate thing that comes to mind here is the president’s public lies about carrying on negotiations to build a Trump Tower in Moscow during the campaign—something his former lawyer Michael Cohen lied to Congress about, which has him headed to prison for three years.

It’s inconceivable that Mueller didn’t look into possible quid pro quos between Trump and the Russians as part of his probe. The question becomes whether his findings on this topic are in the Mueller report itself, or whether the public version will give some indication that those issues—and possibly others—remain brewing in other parts of DoJ. Of course, as with the obstruction stuff, information about other investigations spells potential trouble for the self-proclaimed “exonerated” Trump.

5) In a fantasy world, we would see an outraged president and public demand for serious accountability for Russia’s attacks on the 2016 U.S. presidential election. (No breath-holding on this one.)

One thing is 100 percent for certain: The Russians maliciously interfered in our election. That’s very bad news for Americans and for American democracy. In his appropriations request to Congress this week, Barr asked for more money to investigate foreign influence in our elections without giving it top billing (the subject ranked fourth in his list of five areas needing extra law enforcement dollars). In an ideal world, the commander-in-chief would be shouting from the hilltops that a top priority is to hold the Russians accountable for their campaign-related nastiness. He might also pledge to enhance the safety and integrity of the U.S. electoral process, which is the backbone of our democracy—and thus our individual freedoms.

Instead, despite Barr’s tidings of good news, Trump chided the Mueller team for leading “the single greatest hoax in the history of our country.”

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She is a professor at the University of Baltimore School of Law, a former assistant U.S. attorney and associate independent counsel in the Whitewater investigation, and the author of How to Read the Constitution—and Why (HarperCollins) and What You Need to Know About Voting—and Why (HarperCollins). Her latest book is How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Twitter: @kimwehle.