There is a nightmare scenario embedded in this possible sequence of events that has not gotten the attention it deserves. It creates a way for Trump to bury Mueller’s findings — with the complicity of the GOP-controlled Congress.
There’s already been lots of discussion of the ways in which a replacement for Deputy Attorney General Rod J. Rosenstein could limit Mueller’s probe, by, say, declaring certain areas off limits for the investigation. That’s a serious threat.
But there’s another important angle here: If Trump does remove Rosenstein, his replacement would also have a great deal of discretion over whether — and how much of — Mueller’s determinations ever see the light of day.
“Whoever the president chooses to supervise Mueller can make his own decision about what to release to Congress and the public,” Stephen Vladeck, a law professor at the University of Texas at Austin, told me this morning.
Comey’s new charges are grave. In addition to claiming that Trump is “morally unfit” for the presidency, he has also said that we cannot dismiss the possibility that Trump is vulnerable to Russian blackmail, and has suggested it remains unknown whether Trump knew that former national security adviser Michael Flynn had lied to the FBI when he pressed Comey to stop investigating him.
Taken all together, Comey’s claims hint at just how serious Mueller’s findings could end up being on multiple fronts. Trump lashed out at Comey again today, baselessly accusing Comey of “committing many crimes.”
How much will we learn of what Mueller has established about Trump’s misconduct, if no criminal charges are brought against the president, which remains likely? It’s unclear. Under the relevant regulations, Mueller will provide a “confidential” report explaining his conclusions to the deputy attorney general (because Attorney General Jeff Sessions has recused himself). That person is then supposed to provide leaders of the House and Senate judiciary committees with an “explanation” for the decision to end the probe, which he can release publicly if he chooses. This gives the deputy attorney general a great deal of discretion over how much information is included in that explanation or what the public learns.
A replacement for Rosenstein could not only decline to release something publicly, but could also sharply limit how much information gets sent to Congress. He could send over something that says only, “Dear Congress, I’m pleased to report that the investigation has concluded,” Vladeck tells me. “Or he could send over something that’s more than one sentence, but still falls well short of a detailed overview of the special counsel’s work.”
Congress could prevent this from happening
Here’s where the GOP-controlled Congress come in. There are two ways it could do something to prevent this, if lawmakers so chose. Vladeck says that one would be to pass a bill right now that requires the deputy attorney general to transmit Mueller’s findings in detailed form to the judiciary committees, after a short time period, while allowing him to redact where appropriate, so it preserves some of his discretion. Such a report would likely then become public. (Senate Judiciary Committee Chair Charles E. Grassley is reportedly considering something along these lines, but details are scarce.)
GOP leaders continue to insist that no legislation to protect Mueller from removal is necessary, on the absurd grounds that there’s no chance Trump would ever take such a step. But a bill that would require disclosure of Mueller’s findings in some form would fall well short of that — it would simply ensure that the public learns what Mueller found — so the rationale for not acting on this front is even weaker.
The second way Congress can facilitate disclosure of Mueller’s findings is this: If Rosenstein’s replacement does sharply limit what is sent to Congress, then Congress can legislate for release of those findings after the fact. The bottom line, Vladeck says, is that Congress can act either “at the front end or at the back end” to prevent Trump’s replacement for Rosenstein “from burying Mueller’s findings.”
True, the public pressure on Rosenstein’s replacement to meaningfully disclose those findings would be intense. If he didn’t do this, Congress might well do the right thing and act to ensure public disclosure. (Or they could leak anyway, but disclosure via a controversial process could be more polarizing for the country.)
But, given Republicans’ enabling of Trump on everything from lack of transparency on his tax returns, to the weaponizing of Congress’ investigative machinery to create an alt-narrative designed to shield Trump from accountability, to the continuing refusal to protect the investigation itself, does anyone really think the nightmare scenario can be ruled out? At a minimum, this is a good question for Republicans in coming days: If you are not willing to act to protect the probe, will you at least act to ensure that the public gets to learn what Mueller knows?
* A KEY COMEY CLAIM ABOUT TRUMP AND FLYNN: In last night’s big interview with ABC News, Comey talked about Trump’s demand that he back off on former national security adviser Michael Flynn. Asked whether Trump knew at that point that Flynn had lied to the FBI, Comey said:
“I don’t know. That is obviously an area that a special prosecutor would want to investigate. I don’t know the answer to that.”
As best as I can determine, this still remains an unanswered question, and it’s a very big one.
* COMEY SAYS TRUMP MAY BE COMPROMISED: In another interview, this one with USA Today, Comey says that it’s “hard to explain” some of Trump’s behavior without considering the possibility that he’s vulnerable to Russian blackmail:
“There’s a non-zero possibility that the Russians have some, some sway over him that is rooted in his personal experience, and I don’t know whether that’s the business about the activity in a Moscow hotel room or finances or something else.”
Comey also says it might have been a “mistake” to tell Trump early on that he wasn’t being investigated, because that gave Trump a way to pressure him to make it public.
* COMEY AS THE ‘STAR WITNESS’ AGAINST TRUMP: The New York Times observes:
Mr. Comey seems likely to be the star witness in any obstruction of justice case that might be brought against the president … Mr. Trump’s legal fate, as well as his political fortunes in Washington, may depend on whether he succeeds in undermining the credibility of Mr. Comey and the law enforcement institutions he views as arrayed against him.
Whether or not Trump is found criminally liable for obstruction, Comey’s testimony will matter to the politics of impeachment. As for the PR battle, Trump enters it at a serious disadvantage.
* RYAN REFUSES TO ACT TO PROTECT MUELLER: Paul Ryan, asked on “Meet the Press” if the House would pass a Mueller-protection bill if the Senate passes one, said this:
“I don’t think it’s necessary. I don’t think he’s going to fire Mueller. I think it would be [a] huge mistake. … I don’t think they’re really contemplating this. … It’s not in the president’s interest to do that. We have a rule of law system. No one is above that rule of law system. I don’t think he’s going to be fired.”
Has anyone told Ryan that Trump actually did order his White House counsel to fire Mueller, but that this failed when his counsel threatened to quit instead?
* GOP TO SPEND $250 MILLION TO HOLD HOUSE: The Associated Press reports that the Republican National Committee is preparing a plan to spend $250 million to hold on to the House. Much of the cash will be spent on turnout. Note this:
The RNC’s focus on a sophisticated field operation designed to identify and turn out key voters … leaves the RNC with no additional resources to run advertising on television or the internet. … And few believe that even the best field operation could wholly neutralize the surge of Democratic enthusiasm on display in recent special elections, which has some Republican strategists fearing that the House majority may be lost already.
In other words, some GOP strategists have already seen enough of the Democratic energy to be reasonably sure of what’s coming.
* DEMOCRATIC EDGE IN BATTLE FOR HOUSE NARROWS: A new Post-ABC News poll finds that Democrats lead in the generic House matchup by 4 points among registered voters, 47-43. But of the 56 districts that the Cook Political Report rates as competitive, 51 are GOP-held:
In competitive districts excluding Pennsylvania, where new boundaries were drawn this year, Democrats have an edge of 50 percent to 43 percent when voters are asked which party’s candidates they would favor if the election in their district were held today. Democrats need a net gain of 23 seats to capture the majority.
Meanwhile, a new NBC News poll finds the overall Democratic advantage is 7 points, and that Democrats lead among high-interest voters by 57-36, once again showcasing that enthusiasm edge.
* AND TRUMP’S LAWYER REPORTEDLY KILLED STORY ABOUT DON JR.: The Wall Street Journal reports that “people involved in the matter” say Michael D. Cohen used legal threats to get Us Weekly to kill a story about one of Donald Trump Jr.’s alleged affairs as well:
The magazine … had what staffers believed to be a solid source on the alleged affair by the younger Mr. Trump … They received a call back from Mr. Cohen, who threatened legal action and became so irate that they muted the call while he spoke, one of these people said. … The magazine’s staff didn’t believe it was a big story that would be worth a legal fight.
This is a relatively small thing, but it illustrates how deeply entangled Cohen was in the Trump family’s nefarious dealings, which shows how big a threat a probe of Cohen represents.