The Post reports, “Justice Department officials are preparing for the end of special counsel Robert S. Mueller III’s nearly two-year investigation into Russian interference in the 2016 election and believe a confidential report could be issued in coming days, according to people familiar with the discussions.” That report will go to Attorney General William Barr, who refused to promise during his confirmation hearings that he would release the entire report but has little reason to bottle up a report that Congress could subpoena anyway.
The Post report continues, “An adviser to President Trump said there is palpable concern among the president’s inner circle that the report might contain information about Trump and his team that is politically damaging, but not criminal conduct.” That would be the best-case scenario.
Let’s start with what will not be in the Mueller report: The findings from the Southern District of New York, which is exploring possible violation of campaign finance laws and Trump’s financial dealings. That could go on for years, and has always been a more serious concern for Trump’s inner circle. The report will also not contain the finding from any Roger Stone trial and/or plea deal, since that is being handled by the U.S. attorney for the District of Columbia, not the special counsel’s office. There could be other parts of the investigation Mueller has farmed out to other prosecutors involving Trump, his company, his foundation and his family members. That universe of legal activity will not stop even if Mueller’s part of the investigation does.
As for Mueller’s report, no one outside the special counsel’s team really knows what form it will take. Everything from a simple declination to prosecute to a Leon Jaworski’-like road map to impeachment to a Ken Starr-like potboiler is possible. The restriction on release of grand jury testimony could be lifted by Chief Judge Beryl Howell, the very same judge who recently approved unsealing the Jaworski road map.
I am less concerned than many that Barr, who is a respected lawyer and owes Trump no particular loyalty, will bury the report, especially if Mueller has obtained approval from the chief judge to release grand jury materials to Congress. Perpetuating rumors and speculation about what is in or not in the special counsel’s report serves no one’s interest.
Just as the form of the report is as yet unknown, no outside observer can predict what it will contain. Mueller — who was charged with overseeing both a criminal and counterintelligence investigation — has, with each indictment and conviction, provided previously unknown details, introduced new characters and enlightened us as to the extent of the Russian scheme to interfere with our election.
While court documents and news reports indicate that many members of the Trump team (Paul Manafort, Roger Stone, Donald Trump Jr., Jared Kushner) had contacts with Russians or the Russian cutout WikiLeaks during the campaign, what Trump knew about these and what actions, if any, he approved have not yet been revealed. He might have been privy to every move, utterly clueless or somewhere in between. Without knowing what a host of cooperating witnesses, including Cohen, Michael Flynn and Donald McGahn, has told Mueller, it’s foolhardy to speculate as to what Mueller has learned.
The only “collusion” by Trump we can definitively identify occurred in plain sight — his public request for the Russians to go find Hillary Clinton’s emails. WikiLeaks would later oblige, releasing the first emails within hours of the “Access Hollywood” tape’s release. (Trump’s efforts to pursue the Moscow Trump Tower deal despite Trump’s public denials provide a possible motive for Trump to cover up his Russian connections, but do not on their face appear to be illegal.)
More likely to be included in Mueller’s report is a catalogue of Trump’s efforts to disrupt and interfere with investigations into his and his campaign’s Russia contacts. Trump’s role in concocting phony cover stories (regarding the reason for firing James Comey as FBI director, to explain the June 2016 Trump Tower meeting), his offers to pardon witnesses, his efforts to influence the Manafort jury by publicly disparaging prosecutors, his attempts to get then-Attorney General Jeff Sessions to unrecuse himself, his attempt to persuade Comey to go easy on Flynn, and any potentially misleading written answers by Trump to Mueller’s written questions could be laid out so as to bring us to the inescapable conclusion that Trump obstructed justice.
Trump and his team are right in one respect: Mueller is highly unlikely to indict a sitting president in violation of Justice Department guidelines. (As a former Justice Department official who has worked with Mueller over the years told me, “He’s not a guy to color outside the lines.”) The immediate consequences for the president will be political. Once Mueller is done, the host of other investigations will continue while the focus moves to Congress. Congress and the voters get the last say as to when and under what conditions Trump’s presidency will end.