Opinion writer

Over the weekend, the New Yorker published a long profile of Rudy Giuliani, who is sometimes said to be President Trump’s lawyer, based on the fact that he regularly plays that role on TV.

In the piece, Giuliani tells author Jeffrey Toobin that Trump’s team doesn’t believe special counsel Robert S. Mueller III will ever indict the president, which seems very likely to be correct, and which means the real danger Trump faces is the possibility of impeachment:

The only risk to Trump [is] that Mueller’s report could lead Congress to impeach the President, a process that is political as much as it is legal. With impeachment, Giuliani explained to me, “the thing that will decide that the most is public opinion,” and the perception of Mueller is as important as that of Trump. “If Mueller remains the white knight, it becomes more likely that Congress might at some point turn on Trump,” he told me.

That’s why Trump and Giuliani spend so much time attacking Mueller. But those attacks are a bust, and Mueller’s report, which is likely to focus heavily on Trump’s efforts to obstruct the probe, among other possible serious findings, could play a big role in swinging public opinion further against the president.

Which is why Trump’s legal team is mulling a move to block as much of its release as possible:

Mueller will file a concluding report with Rod Rosenstein, the Deputy Attorney General, at the end of the investigation, and, in theory, Rosenstein has the option of releasing the report to Congress and to the public. But Giuliani pointed out a little-known aspect of the agreement that Trump’s original legal team struck with Mueller: the White House reserved the right to object to the public disclosure of information that might be covered by executive privilege.

I asked Giuliani if he thought the White House would raise objections. “I’m sure we will,” he said, adding that the President would make the final call. In other words, the conclusion of the special counsel’s investigation could be the beginning of a contentious fight over whether Rosenstein is allowed to release a complete version of Mueller’s report. [emphasis added]

Could this work? On Tuesday, I spoke to Andrew Kent, a professor at Fordham University School of Law. The short answer is: Probably not, but there are scenarios under which it could have some success, and a lot may turn on whether Democrats win back one or both chambers of Congress.

Under the special counsel regulations, Mueller is supposed to provide a “confidential” report explaining his conclusions to the attorney general — or, in this case, to Rosenstein, since Attorney General Jeff Sessions has recused himself. Rosenstein, not Mueller, is then supposed to provide the chairmen and ranking members of the House and Senate judiciary committees with an “explanation” for the Justice Department’s decision to conclude the investigation.

This explanation can be released publicly if the Justice Department official overseeing the probe decides it would be “in the public interest.” In this scenario, Rosenstein would have a great deal of discretion to decide how much to put in that report — he could keep it very brief, or supply a lot of detail.

Kent tells me the White House could try to override the regulations and stop the report’s release to Congress — or at least part of it — by claiming executive privilege covers certain information in it. Kent says most of the information in the report probably would not plausibly be covered by any such claim, but that Trump might try to assert that much of it is, anyway.

“The White House could make to Rosenstein absurdly broad claims of executive privilege, arguing that much of the information in the report must be withheld,” Kent says.

If Trump ordered Rosenstein to refrain, he could threaten to resign. At that point, Trump might say, “good riddance,” and install his own deputy attorney general to block the report’s release to Congress, or Trump could conceivably fire Sessions and replace him with a loyalist who, having not recused himself, could do the same.

Then, the question would become whether Congress would act — say, by subpoenaing the report. If it did, and Trump defied that, Kent says, the courts would almost certainly rule in favor of Congress.

But it’s not clear that a Republican-controlled Congress would actually try to subpoena the report. (If you don’t think the GOP Congress is capable of such a dramatic abdication to protect Trump, you haven’t been paying attention.) And if the GOP Congress did abdicate in this way, Kent points out, the only way the report might then be subpoenaed — and released — is if Democrats assume the House or Senate majority next year.

“A huge amount comes down to whether Democrats get one or both houses of Congress,” Kent said. “My intuition is that whatever the report [says] about obstruction of justice is going to be pretty damaging to Trump, and that they’re going to try to do what they can to block it, in whole or in part.”

Have we mentioned that the only way we’re going to get real accountability on Trump is if Democrats take back the House?