WASHINGTON — As Special Counsel Robert Mueller’s Russia investigation continues into 2019, anticipation builds around several questions, most notably: What will Mueller’s final report say? And will it ever see the light of day outside the halls of the Justice Department?
The Washington Post reported Wednesday that the top lawyer in the Trump White House had hired 17 attorneys as part of a strategy to suppress the release of the president’s most sensitive discussions with his closest advisers — interactions that could reveal attempts made by the president to obstruct justice. The White House’s aggressive tack appears aimed at stopping any possible evidence of obstruction from finding its way into the hands of House Democrats — or from appearing in a public report laying out Mueller’s findings.
The news of the White House’s lawyering-up prompted a new round of questions and worrying about whether the Trump administration will succeed at suppressing the Mueller report, preventing members of Congress or the American people from seeing what’s in it.
On Wednesday evening, Neal Katyal, a former acting solicitor general during Barack Obama’s presidency, published a series of tweets that made the strongest case yet for why the Mueller report will eventually become public.
Two decades ago, as a Justice Department lawyer under Bill Clinton, Katyal helped write the regulations that guided future special counsel investigations. Those rules — which now dictate what Mueller and his team can and can’t do — envisioned two possible reports to emerge from a special counsel’s investigation. The first is a confidential report, sent to the attorney general at the probe’s conclusion, outlining why the special counsel chose to prosecute or not. And then there is a second possible report, from the attorney general to Congress, that explains why the DOJ chose to act or not on the special counsel’s findings.
That second report is the crucial one from a public’s-right-to-know perspective. In it, the attorney general — likely soon to be William Barr, Trump’s nominee to replace Jeff Sessions — must tell Congress why the special counsel’s probe ended and any examples of the attorney general overruling the counsel’s recommendations. Imagine if Mueller recommended prosecuting Trump for obstruction of justice, and Acting Attorney General Matthew Whitaker or future A.G. Barr chose not to do so — Whitaker or Barr would have to explain that decision to Congress. That explanation could be a few sentences long; it could be a book-length report like Ken Starr’s in the final years of Clinton’s presidency.
That second report, Katyal says, was meant to ensure “Congressional and public confidence in the integrity of the process.” In other words, a check on the attorney general if he or she tries to suppress or dismiss the conclusions and recommendations of the special counsel.
As Katyal writes, the ability of an attorney general to override the special counsel is quite narrow — and that’s by design. The A.G. can only intervene if what the special counsel is recommending would violate “established Departmental practices,” grossly exceeding the past practices at the DOJ.
Practically speaking, Katyal says, if Mueller concludes that Trump cheated to win the 2016 election, just because he won and is the president now doesn’t mean the A.G. can throw out that finding by saying it goes against DOJ practices. “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,” Katyal tweeted.
Here’s another key point from Katyal’s thread. If Mueller senses that the attorney general wants to prevent his findings from being released, there’s a card he can still play. Mueller can signal to the A.G. that he wants to take legally sensitive acts as a result of his probe, and force the A.G. to override him, triggering the report to Congress. “It is a safeguard to prevent a cover-up, it creates a mandatory report to a separate and coequal branch of govt,” Katyal tweeted. “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.”
And what about the Trump White House’s plan to claim executive privilege and prevent Mueller’s most sensitive findings from being released?
Katyal doesn’t buy it. He’s argued, in tweets and an op-ed, that Trump has an “even weaker” case than Richard Nixon did in the 1970s. Nixon tried to shield himself from the Watergate investigation by exerting executive privilege, an argument that the Supreme Court roundly rejected in United States v. Nixon. (Nixon, of course, resigned just days after that decision.) Even under the Trump administration’s view that a sitting president can’t be indicted — a view that is hotly debated — that would mean Mueller would have to turn over all of his investigative materials to Congress as part of a possible impeachment process, Katyal notes.
Rudy Giuliani, President Trump’s outside lawyer, has disputed some of these interpretations, insisting that Trump can’t be indicted. Trump’s White House lawyers seem to believe Mueller’s juiciest conclusions can be kept secret. But coming from Katyal, the argument in favor of Mueller’s work seeing daylight is convincing. “Bottom line: the President can try to hide the Mueller Report,” Katyal tweeted. “He will lose to the public’s right to know.”