"BY THE BOOK BOB”: As Washington preps for what looks like the imminent release next week of Robert Mueller's report, prosecutors we talked to yesterday say some things are already pretty clear about the special prosecutor's two-year long probe into Russia interference in the 2016 election and ties to the Trump campaign.
These lawyers, many of whom have experience in sprawling investigations like this one, however, said that whatever happens, Mueller is likely to hew tightly to the letter of the law: “He is by-the-book-Bob. So you want to start with the presumption that he will look at these regulations and follow them very literally and closely,” said one former Justice Department prosecutor.
Lawyers we talked to have a couple of reminders for breathless lawmakers, readers and us journalists: the whole report may not be released publicly, and Mueller is unlikely to recommend charges against President Trump, regardless of what evidence he does or does not uncover. But the prosecutors told Power Up to expect a slew of subpoenas and potentially charged litigation that could make its way to the Supreme Court.
Important: Trump and his allies have spent months calling the probe a “witch hunt” and trying to undermine the special counsel's work. But the investigation has so far led to criminal charges against 34 people (many of them Russians unlikely to be extradited) and six advisers and Trump associates have pleaded guilty.
Here's what the prosecutors told me to expect:
1. The Barr Factor: It's up to new Attorney General William Barr to decide whether to release all, some or none of the Mueller report.
- Trump said as much on Wednesday in the Oval Office: “That'll be totally up to the new attorney general,” Trump told reporters during a meeting with Austrian Chancellor Sebastian Kurz. “He's a tremendous man, a tremendous person who really respects this country and respects the Justice Department.”
- Public?: “Lawmakers have demanded that Mueller’s report be made public, but Barr has been noncommittal on that point, saying that he intends to be as forthcoming as the regulations and department practice allow,” report The Post's Devlin Barrett, Josh Dawsey and Matt Zapotosky. “He has pointed, however, to Justice Department practices that insist on saying little or nothing about conduct that does not lead to criminal charges.”
- The process: Regulations require Mueller to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” The regulations then call for Barr to report to Congress about the investigation. It's unclear, though, how detailed Barr's summary will be though due to “legitimate investigative” or “privacy concerns” that require confidentiality.
2. Expect a tug of war with Congress and Justice — and potentially the courts — regarding full access to the report.
- How tough a line will DOJ take? Republicans set the standard last year for obtaining access to information that the FBI or the DOJ wouldn't normally provide during ongoing cases after House Republicans' intense lobbying and threats to impeach top FBI and DOJ officials over the information flow.
- Supreme Court: The former prosecutors said if Barr declines to send the whole report to Congress, the House Judiciary Committee could subpoena it, leading to a possible chain of litigation all the way up the Supreme Court.
- “I think it’ll come down to what the House Judiciary is willing to accept and how fulsome Barr chooses to be in including material within the scope of the report in whatever summary that he transmits to Congress,” another former DOJ prosecutor told us.
- Worst-case scenario: Mueller is subpoenaed to testify before Congress. Yes, this could actually happen.
- How? “What if Mueller finishes what he does and is not an employee of the government anymore — just a private citizen -- and doesn't want to be held in contempt by Congress so he agrees to honor their subpoena? It would be quite the circus," said another former DOJ prosecutor.
- That prosecutor pointed to the "gold standard" of accommodation and cooperation outlined in something we might all need to get to know: the Linder letter. The letter sent by DOJ to then-Rep. John Linder (R-Ga.) in 2000 cites examples of confidential information that might not be available to Congress and outlines "the Department's longstanding positions and practices on responding to congressional oversight requests." The letter is especially stringent when it comes to ongoing investigations.
3. Mueller is not likely to recommend criminal charges against Trump.
- The special prosecutor's report is likely to contain what prosecutors described as a “kitchen sink” of relevant investigative information.
- If (and it's a big if) Mueller has amassed sufficient evidence regarding Trump himself, it might describe such evidence but not recommend any kind of criminal charges because of DOJ guidelines that block a sitting president from being indicted.
“Whether it’s a crime or not is beside the point because they’re not going to prosecute him anyway,” a former prosecutor at the DOJ told us of Trump.
Mueller “is a rules follower and he’d be careful to refrain from doing or saying anything than operating outside of the prescribed legal scope of his authority,” another former DOJ prosecutor us.
“According to people familiar with the special counsel’s work, Mueller has envisioned it as an investigative assignment, not necessarily a prosecutorial one, and for that reason does not plan to keep the office running to see to the end all of the indictments it has filed,” Devlin, Josh and Matt report.
4. There will be a lot of loose ends. And "the end of the special counsel’s probe would not mean the end of criminal investigations connected to the president," my colleagues report. In other words: "It means the end of the beginning, not the beginning of the end," former acting solicitor general Neal Katyal tweeted.
- “Federal prosecutors in New York, for instance, are exploring whether corrupt payments were made in connection with Trump’s inaugural committee funding. If Mueller does close up shop, government lawyers on his team would likely return to their original posts, but would be able to continue to work on the prosecution of cases initiated by the special counsel’s office,” per my colleagues. "If Mueller does close up shop, government lawyers on his team would likely return to their original posts, but would be able to continue to work on the prosecution of cases initiated by the special counsel’s office.”
IN OTHER NEWS, A COHEN UPDATE: Michael Cohen, Trump's former fixer and longtime lawyer, will testify publicly before the House Oversight Committee on Feb. 27 in a blockbuster showdown featuring his long-term relationship with the president. According to a memo released by Chair Elijah Cummings (D-Md.), Cohen is expected to address a number of issues related to Trump's debts, business practices, compliance with campaign finance laws, etc. (See below for the full scope).
- Key: “Mr. Cohen won’t answer questions that touch on [Mueller’s] investigation into whether Trump associates colluded with Russia’s interference in the 2016 U.S. election, according to a person close to Mr. Cohen,” per the Wall Street Journal's Rebecca Ballhaus.
- Top Republicans on Oversight, Reps. Jim Jordan (R-Ohio) and Mark Meadows (R-N.C.), wrote a letter to Cummings Tuesday, accusing him of being “out to attack the president for partisan gain,” noting that Cohen had previously lied to Congress. "They said they intended to question Mr. Cohen about his 'conduct throughout his professional life and any other financial dealings he has had, including with his father-in-law,'" Ballhaus reports.
- Cohen was also granted a two-month extension to begin his prison sentence reached after pleading guilty to lying to Congress, following a shoulder surgery and is now set to start his three-year jail stint on May 6.
At the White House
"SUBSTANTIAL GAPS”: When Mueller is issuing his report next week and Cohen is testifying before Congress, President Trump is slated to be in Vietnam for his second nuclear summit with North Korean Leader Kim Jong Un. My colleagues John Hudson and David Nakamura report that Trump's special envoy to North Korea Stephen Biegun, a former Ford lobbyist and one-time foreign policy adviser to Sarah Palin, arrived in Hanoi late last night in order to "close substantial gaps" ahead of Trump and Kim's meeting.
- “The challenge for Biegun in meeting his counterpart, Kim Hyok Chol, will be to try to clinch a detailed agreement that can satisfy Trump’s desire for a historic deal but one that can withstand the scrutiny of detractors, including national security adviser John Bolton and others, who warn that Pyongyang is not to be trusted,” Hudson and Nakamura report.
- However, Biegun has faced internal resistance from hawkish members of the administration like Bolton who has “fiercely opposed this 'step-by-step' process in favor of maintaining maximum pressure through economic sanctions that would in theory force a better deal by eroding North Korea's resolve."
Shot: “Bolton has fretted privately that Biegun’s team is too eager for a deal and he continues to believe the negotiations will fail, according to people familiar with the deliberations who spoke on the condition of anonymity to discuss the tensions within the administration,” per Hudson and Nakamura.
Chaser: “If you don’t like this approach, then I don’t think you’re in favor of diplomacy — period. And it may be that Bolton isn’t,” said Tod Lindberg, a senior fellow at the conservative Hudson Institute. “This is what good diplomacy looks like.”
Trump, for his part, sounded optimistic about the summit, telling reporters: “Chairman Kim and I have a very good relationship. I wouldn’t be surprised to see something work out." He said on Tuesday that he's in “no rush whatsoever” on North Korean denuclearization.
Earlier yesterday, Trump spoke with Japanese Prime Minister Shinzo Abe. A Japanese official told us that Abe asked Trump to “extend support to the Prime Minister in resolving the abduction issue just like at the first summit meeting in Singapore by sending Abe's intention to Kim Jong Un.” The two will speak again after the Vietnam summit.
Presumably in response to reports that Trump is considering firing Director of National Intelligence Dan Coats (after he publicly contradicted Trump on the prospects of reaching a disarmament agreement with North Korea), Sen. Susan Collins (R-Ma.) tweeted the below:
When asked about replacing Coats in the Oval Office on Wednesday, Trump told reporters, "I haven't even thought about it."
On The Hill
Quick National Emergency Update:
ISRAEL: “EQUIVALENT TO A U.S. PRESIDENT CUTTING A POLITICAL DEAL WITH DAVID DUKE”: Barak Ravid of Israel's Channel 13 news/ Axios reports that Prime Minister Benjamin Netanyahu successfully formed an “ultra right-wing party that will run in the April 9 elections, paving the way for Jewish supremacists from the 'Jewish Power' party to make it into the next Knesset.”
Ravid called the move “an unprecedented development in Israel's history and is equivalent to a U.S. president cutting a political deal with David Duke, the former KKK leader.”
- “The prime minister and the ruling Likud Party are legitimizing a racist, xenophobic and homophobic fringe party in hopes of bolstering a right-wing bloc after the elections,” Ravid added.
- “Jewish Power” was formed by the followers of Rabbi Meir Kahane, the former leader of the Kach party, which was banned from running in Israel's 1988 elections and designated a terror organization by the Israeli government in 1994. Kach was also blacklisted as a terrorist organization in the U.S., Canada and the EU.”
VENEZUELA: The standoff continues between President Nicolás Maduro and Juan Guaidó, the opposition leader who declared himself Venezuela’s legitimate leader last month, as the crisis in the country deepens.
- The New York Times's Nicholas Casey reports that ahead of a Saturday deadline by the Trump administration and the opposition to “end a blockade and allow the delivery of humanitarian aid that has been piling up at the country’s borders for more than a week,” the government closed its borders “to air and sea traffic from three caribbean islands in an effort to block aid shipments to the country organized by the Venezuelan opposition.”
- Maduro continues to deny there is a humanitarian crisis and is staging a dueling concert after billionaire Richard Branson announced he’d be throwing “an aid concert in Colombia on Friday to benefit Venezuelans suffering food and medicine shortages amid their country’s economic crisis,” per the Associated Press’s Luis Andres Henao.
- “Branson told [the AP] that the concert he’s throwing on Friday will save lives by raising money for 'much-needed medical help' and other aid for crisis-torn Venezuela. Minutes later, Maduro’s government announced what it called a “massive” concert for Friday and Saturday on the Venezuelan side of the border,” Henao reports.
SYRIA: My colleagues Karen DeYoung and Missy Ryan report that our European allies are refusing to replace American forces with their own troops in Syria and won't stay there unless Trump reverses his hastily announced withdrawal order with which senior Pentagon officials have publicly disagreed.
- “As the deadline approaches for the withdrawal of U.S. forces fighting the Islamic State in Syria, America’s closest European allies have turned down a Trump administration request to fill the gap with their own troops, according to U.S. and foreign officials.”
- “Allies have 'unanimously' told the United States that they 'won’t stay if you pull out,' a senior administration official said. France and Britain are the only other countries with troops on the ground in the U.S.-led coalition battling the Islamic State,” per DeYoung and Ryan.
During a private meeting last week at the Munich Security Conference, Acting Defense Secretary Patrick Shanahan faced tough questioning behind closed doors from the U.S. congressional delegation about Trump's exit plans.
- “Are you telling our allies that we are going to go to zero by April 30?” Sen. Lindsey Graham (R-S.C.) asked Shanahan, according to an account Graham gave to Post columnist Josh Rogin. When Shanahan replied that those were the president’s order, Graham said he replied, “That’s the dumbest f---ing idea I’ve ever heard.”