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Analysis: What to expect when you’re expecting the Mueller report — a primer

The Washington Post logo The Washington Post 3/21/2019 Aaron Blake

One of the strange realities of the long-awaited Robert Mueller report is this: It could be one of the most anti-climactic moments in modern politics. We will know when the report has been sent to the Justice Department. And that could be about it, unless it comes with indictments.

As Attorney General William P. Barr explained in his confirmation hearing, the report will be sent to him, and then he will be in the position of summarizing the parts that he can for Congress and the public, within the constraints of the law and Justice Department guidelines. We will not simply get the kind of lengthy narrative we saw in Kenneth Starr’s report on Bill Clinton, because Mueller is operating under a different statute.

“The regs do say that Mueller is supposed to do a summary report of his prosecutive and his declination decisions,” Barr said back in February, referring to determinations of whether to charge someone, “and they will be handled as a confidential document, as are internal documents related to any federal criminal investigation.”

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He added, though, that he “has some flexibility and discretion in terms of the attorney general’s report.”

But what kind of discretion? And what happens then? Here’s a little primer to consult once the report is sent ... and we wait.

What constrains Barr

There are a few basic things Barr may have to withhold from public view, and even potentially from Congress.

Federal Rule of Criminal Procedure 6 says that details of the investigation must be kept secret unless they are revealed as part of a court order related to an indictment or other proceeding. Grand jury rules prohibit the disclosure of information obtained via that method — a method Mueller has undoubtedly used extensively — unless actual charges are filed. And Barr will also have to review the report for any classified information.

It is expected that this review process could take days or even weeks.

The Catch-22

But this creates an unusual and problematic circumstance when it comes to President Trump. The Justice Department has affirmed its guidelines prohibit the indictment of a sitting president, so how will information about Trump be handled? If Trump can’t be indicted, and Barr can only disclose information related to actual charges, does that mean he can’t say much of anything about Trump’s conduct and potential obstruction of justice? Trump said Wednesday that he is fine with the full report going public, but does that even matter?

In short, we don’t know what happens. But it’s difficult to believe Barr and the Justice Department won’t have to say something about whether Mueller believed Trump’s actions rose to the level of crimes, even if he can’t be charged.

After all, Congress is the body charged with holding a president accountable, through impeachment proceedings. So it would seem at least they would somehow need to be made aware of the information required to make such decisions.

A road map? Separate reports? Releasing the whole thing?

One option that has been floated for Barr is releasing separate reports. Former Justice Department officials have suggested he could deliver two reports to Congress: One with unclassified information that could be given to all lawmakers (and would presumably leak to the public), and a separate one that would be given to a much-smaller universe of congressional leaders, such as House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) and House Judiciary Committee Chairman Jerry Nadler (D-N.Y.), who is in charge of any impeachment efforts.

But even then, the rules described above could get in the way.

Another option would be to take a page out of history. When confronting a somewhat similar set of circumstances during Watergate, special prosecutor Leon Jaworski used a workaround: Rather than make recommendations to Congress, he transmitted through a grand jury what became known as the Watergate “road map.” It was a bare-bones set of facts and guideposts for them to conduct their own inquiries and draw their own conclusions. The move was authorized by a federal judge and could provide a precedent for Barr.

A third eventual result would be that the full report, or something amounting to it, eventually finds its way out. House Democrats have said they will press for the whole thing. The House voted 420-0 to make the report public, and now Trump says “Let people see it.” But how Congress feels may not matter. They can’t simply pass a law to force the report’s release, given that would conflict with other federal laws. If they were to get extensive details of Mueller’s findings, it would likely have to come through the legal system in some fashion. They could seek a court order. They could subpoena Mueller’s documents. They could call Mueller to testify. They could do all of the above and more.

In short, Mueller has conducted a highly secretive investigation, whose inner workings have often been revealed only months after key events took place. And just as we don’t really know what he’s found, we don’t know what the endgame will be. This could go in a whole bunch of different directions, with a relatively new attorney general in charge of it all.


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