THE MORNING PLUM:
The big news in this Post story is not that President Trump isn’t a “target” of special counsel Robert S. Mueller III’s investigation. Rather, it’s that Mueller is planning a report on Trump’s conduct, particularly as it relates to actions on his part that could constitute obstruction of justice.
Will Mueller’s findings ever get released in some form? Most likely, yes. But there are some very unpleasant scenarios that could intervene — including the very real possibility that congressional Republicans will do all they can to keep Mueller’s report under wraps. This is something they can try to do, it turns out.
The Post report notes that Mueller has informed Trump’s lawyers that he doesn’t consider him a criminal target at this point. But it says Trump is still a subject of the investigation, which means his conduct is still being scrutinized, even if there aren’t grounds for criminal charges.
It has always seemed unlikely that Trump would be indicted, particularly for obstruction of justice, as there’s a spirited debate over whether the executive branch’s constitutional authority even allows for a president to be held criminally liable for such conduct. Rather, the question has been how serious his misconduct was, and we might find out soon enough:
The special counsel also told Trump’s lawyers that he is preparing a report about the president’s actions while in office and potential obstruction of justice, according to two people with knowledge of the conversations. …
Mueller’s investigators have indicated to the president’s legal team that they are considering writing reports on their findings in stages — with the first report focused on the obstruction issue, according to two people briefed on the discussions.
What happens then? Under the regulations that govern appointment of the special counsel, Mueller is supposed to provide a “confidential” report explaining his conclusions to the attorney general — or, in this case, to Deputy Attorney General Rod J. Rosenstein, since Attorney General Jeff Sessions has recused himself. Rosenstein is then supposed to provide the chairmen and ranking members of the House and Senate judiciary committees with an “explanation” for any decision to conclude the investigation. This explanation can be released if he decides it would be “in the public interest.”
There has been a robust debate over what these regulations really mean. One convincing interpretation is that Mueller himself probably wouldn’t produce an exposé in the tradition of the Kenneth W. Starr report and likely would stick to a more orthodox prosecutorial role. His report probably would remain confidential, barring some sort of extraordinary actions.
But the real question may be whether Rosenstein’s report will ever come out — and what it might look like. According to legal experts I spoke with today, the regulations appear to give Rosenstein room to decide what his “explanation” to the judiciary committees will entail in detail and scope.
“He could write a two-sentence explanation — or he could write something very detailed,” Andrew Kent, a professor at Fordham University School of Law, told me today. “There appears to be a great deal of discretion vested by the regulations to determine how detailed a report to write. The regulations don’t limit that.”
Rosenstein would likely come under great pressure to produce something detailed to Congress, provided it remained within secrecy constraints, Kent continued. At that point, Rosenstein could release it himself. Or, if not, the report could leak, or portions could be described to reporters. Or, Kent said, Congress could even consider trying to legislate for its partial or complete public release.
And that raises a host of other possibilities. Republicans — who, you may recall, are in the majority — could block a vote on whether to release Rosenstein’s report, or could vote against it. If you don’t think those are real possibilities, you haven’t been paying attention. Republicans have blocked transparency on Trump’s tax returns and have perverted the oversight process into a counter-investigation that is grounded in alternate reality and is designed to frustrate accountability. So nothing should be deemed off limits.
If Republicans did block its release, Democrats could campaign against that in the midterm elections, says Stephen Vladeck, a law professor at the University of Texas at Austin. “If Democrats take the House, the report would still be sitting there when they took control in January,” Vladeck said. “If the report is not shared with the public, that could just be temporary.”
Trump could respond to a congressional vote to release the report with a veto. But Congress could override that, particularly if Democrats win big this fall. Or Trump might try some kind of executive action to block release. It seems likely some sort of showdown is coming.
Striving for the correct balance will be critical. On one hand, it is important, as Jack Goldsmith and Maddie McMahon say, that the process behind the release be “legally uncontroversial.” On the other, there is great public interest in learning the findings, since that could illuminate answers to big questions involving presidential conduct and help mitigate the damage Trump has already done to the rule of law. Getting both right, if possible, is crucial to avoiding deep civic damage. But Republicans and/or Trump could still try to block any release from happening. So we may have yet to see just how much damage they might do in that regard.
* DEMS NOTCH BIG WIN IN WISCONSIN: Dem-backed candidate Rebecca Dallet last night won a seat on the Wisconsin state Supreme Court after comfortably defeating conservative Michael Screnock. David Weigel comments:
Both candidates and their supporters turned the race, which is technically nonpartisan, into a political referendum. Dallet ran early ads that accused President Trump of “attack[ing] our civil rights and our values,” while Screnock portrayed himself as a “rule of law” conservative endorsed by the National Rifle Association.
This is a swing state that Trump won — and there is a big gubernatorial contest there this fall.
* SCOTT WALKER WARNS OF ‘BLUE WAVE’: After last night’s results, the Wisconsin governor sounds the alarm:
Talk more about the GOP tax cuts that overwhelmingly benefited the rich and corporations! There’s a “positive story” for you.
* ABOUT THAT ‘CARAVAN’ OF MIGRANTS: The Post reports on the “caravan” of migrants making their way towards the border that has so enraged Trump:
While the numbers of border crossers are down compared with past years, the hunger to reach the United States — still more than 800 miles from this encampment — is as acute as ever for many Central Americans. They face unceasing danger in gang-controlled neighborhoods; they search fruitlessly for low-paying jobs; they yearn to be with relatives who have been living for decades in the United States; they want better lives for their children.
But conservative media is hyping this to the skies as a dire threat, and the only thing Trump evidently cares about here is that this makes him look weak.
* TRADE WAR IS SET TO ESCALATE: China just announced a range of new tariffs on U.S. products, including soybeans, some airplanes and cars, and The Post reports that this is “deepening fears of a rapid escalation.” Note this:
The focus on U.S. soybean exports by China could have a particularly severe impact on the United States. Soybeans are the top U.S. agricultural export to China and U.S. soybean farmers and their allies fought hard to prevent the tariffs … Farm states generally backed Trump in the 2016 election, and their exports could be hurt.
No worries — just tell Trump country that these policies are “good for the market.”
* TRUMP’S TRADE POLICIES ARE ‘GOOD FOR THE MARKET’: Trump’s trade adviser Peter Navarro tells John Harwood that people should stop freaking out about Trump’s trade war:
“Everybody needs to relax,” Navarro told CNBC. Trump’s trade policy is “good for the market,” he insisted, adding: “I teach that stuff. I mean, let’s remember – if anybody knows what goes wrong with these models, it’s the guy who knows how to teach them.”
The markets have slid. That aside, many of the jobs targeted by China’s retaliatory tariffs are in Trump counties. Maybe telling Trump voters this is “good for the market” isn’t a great idea.
* TRUMP AGAIN CATCHES ADVISERS OFF GUARD: Trump yesterday said he wants to send the National Guard to the southern border. The New York Times reports that this “caught some of his top advisers by surprise,” and adds:
After the president’s remarks, White House aides struggled for hours to decipher his intentions.
We all know Trump has no idea of the details and challenges involved, but those who work for him are required to at least make a game effort to translate every impulse into policy.
* ON BORDER, TRUMP IS ‘CONCERNED ABOUT HIS BASE’: The Post’s Seung Min Kim reports on why Trump might be talking about sending the National Guard to the border:
One adviser who speaks often to Trump said that the president has been concerned about his political base since he signed into law last month a spending bill that did not fund the wall or some of his other immigration plans and that he has carefully monitored recent criticism, particularly on Fox News. Since then, the adviser said, he has been trying to appeal to his supporters through tougher rhetoric on border security and pushing protectionist trade policies.
It’s striking that it barely creates a ripple anymore that Trump makes decisions based on whims controlled by what Fox News tells him.