Speaking to reporters on Wednesday, President Trump appeared to signal openness to full release of the Mueller report. Some reporters are interpreting this to mean that Trump and his advisers are confident that it will be far less damaging than expected.
It may be that what the public learns of special counsel Robert S. Mueller III’s findings is not that damaging — at least initially. But this is not as relevant as the spin from Trump allies (and from some in the media) makes it seems. That’s because we’ve already learned of a tremendous amount of wrongdoing, misconduct and criminality by top aides due to the Mueller investigation and its spinoffs, and because multiple investigations will continue after the Mueller probe closes shop.
But that aside, it’s simply absurd to read much into Trump’s stated desire for the report to be released. And there is a way to call Trump’s bluff on this, too.
“I don’t mind,” Trump said when asked whether the public has a right to see the Mueller report. “Let it come out, let people see it, that’s up to the attorney general.”
Trump went on to denounce the very existence of the Mueller report as “ridiculous.” But if there’s anything that is “ridiculous” here, it’s the idea that anyone should take this declaration from Trump at face value even for a second.
First, the phrase “Mueller report" confuses this particular discussion. Under Justice Department regulations, Mueller will submit a “confidential” report to attorney general William P. Barr upon the “conclusion” of his investigation. Barr is then supposed to submit an “explanation” of that conclusion to the judiciary committees in both chambers.
This gives Barr tremendous discretion to decide how much detail to transmit to Congress. (By pure coincidence, Trump took care to effusively praise Barr Wednesday.) There is great uncertainty as to whether Barr will transmit a lot of detail, particularly if no further charges are brought. There are of course good arguments in general terms against revealing a great deal of information absent charges.
But the complication here is that Justice Department policy is not to indict a sitting president, so it’s possible that if Mueller did find crimes, Trump might avoid indictment and the information necessary to facilitate a political solution (such as impeachment) might not be given to Congress. This would make basic accountability impossible.
As Trump says, Barr will make this decision. It is at least possible that Barr will take Trump’s words seriously and be more transparent as a result. But that’s highly doubtful, and for now, there is simply no reason to assume in advance that this will weigh heavily on Barr’s decision-making.
There’s a more pressing reason not to take this seriously, however. If Barr reveals little to Congress, then at that point, House Democrats will probably try to subpoena the original Mueller report (the one he submitted to Barr), as they have announced they will do.
It’s at this point that we’ll really learn if Trump’s supposed desire to see the report released means anything at all.
Andrew Kent, a professor at Fordham University School of Law, tells me that the real test will reside in how the White House reacts to that effort. Trump, in consultation with his lawyers, could instruct the attorney general not to release to Congress portions of the report involving, say, Russian interference in the election, arguing that this would put classified information in jeopardy.
Or Trump’s lawyers could tell the attorney general not to release information that might shed further light on Trump’s efforts to obstruct the investigation — such as information on private conversations between Trump and top advisers — by asserting executive privilege, Kent says. (Trump’s lawyers had previously indicated that he waived executive privilege on some Mueller requests, but we have no idea whether that will hold.)
By contrast, Kent notes, if Trump really wants to “let it come out,” he could refrain from doing those things, and even facilitate the release if he chooses.
Kent notes that there are questions that can be posed to Trump and the White House to call his bluff: “Will you commit in advance that he will not assert executive privilege to block the release? Will you commit in advance to declassify information that’s contained in the Mueller report?"
Kent adds that reporters can take this further, and directly ask the attorney general and the Justice Department whether they will commit in advance to making this disclosure in response to congressional subpoenas without any involvement at all from the White House. “Because Trump is so personally implicated in this, that’s a totally fair question,” Kent says.
Beyond all this, as Martin Lederman points out, there may be information that Mueller collected as part of the counterintelligence investigation (as opposed to the criminal one) that is not subject to the same strictures against releasing information when indictments are not brought, and indeed would have to be turned over to Congress. Thus, we may be learning a lot more regardless of what Trump says or does not say about what he wants released.
Bottom line: Barr will make the initial decision about how much is given to Congress, almost certainly with no regard to Trump’s words. And if that disclosure is limited, Democrats will subpoena Mueller’s report. At that point we’ll find out if those words had any meaning. If you’re inclined to give Trump the benefit of the doubt on this, you haven’t been paying attention.