Alex Whiting is a professor at Harvard Law School and a former federal and international prosecutor. Ryan Goodman is a professor at New York University School of Law and co-editor in chief of Just Security. Nancy Gertner, a retired U.S. District Court judge in Massachusetts, is a lecturer at Harvard Law School.
In public remarks last month, Deputy Attorney General Rod J. Rosenstein hinted about the fate of special counsel Robert S. Mueller III’s report on the results of the investigation into Russian interference in the 2016 presidential campaign. While not speaking about any particular case, Rosenstein reiterated the department’s policy of not publicly commenting on the evidence in cases where charges are not brought. This might affect the report’s release, as Mueller is expected to abide by the Justice Department’s policy that a sitting president cannot be indicted.
Rosenstein described his message he has given to prosecutors and agents during his tenure: “If we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.” Attorney General William P. Barr’s message at his confirmation hearing in January was much the same: “If you’re not going to indict someone, you don’t stand up there and unload negative information about the person.”
The policy reflects a basic norm within the Justice Department. Then-FBI director James B. Comey was widely condemned, including by the department’s inspector general, for violating it during the 2016 presidential campaign when he publicly criticized Hillary Clinton’s conduct regarding the use of a private email server while secretary of state, even as Comey announced that the FBI had not found sufficient evidence to recommend criminal charges.
Yet a closer look at the department’s policy suggests that Rosenstein’s approach might not apply to the Mueller report.
Although the norm is well established, it isn’t actually set forth as a rule anywhere, including in the department’s extensive Justice Manual. Its central focus is to bar the public discussion of evidence that falls short of being enough to charge a person with a crime. In the Clinton email investigation, the inspector general found no basis for “‘trashing’ the subject of an investigation with uncharged misconduct that Comey, every agent, and every prosecutor agreed did not warrant prosecution.”
That approach not only protects the interests of a subject or target but also acts as an important constraint on prosecutors. Their job is to investigate crimes and to prosecute them if the evidence is sufficient, not to be roving critics of all “misconduct.”
But neither rationale would apply if Mueller finds sufficient evidence of criminal conduct by President Trump but chooses not to charge him simply because of the department’s policy. It would not mean that prosecutors “aren’t prepared to prove our case beyond a reasonable doubt,” in Rosenstein’s words, or that the conduct “did not warrant prosecution,” in the inspector general’s. Rather, the Mueller report would lay out the factual and legal grounds for criminal responsibility, just the kind of report that prosecutors regularly write.
Nor is the subject or target’s interest enough to block publication. Regarding possible criminal allegations against Trump, Congress has an obligation to consider whether impeachment is warranted. It is precisely because the impeachment remedy has priority that Mueller, according to the Justice Department, is barred from seeking the president’s indictment. But it would be absurd if Justice Department policies prevented both the criminal indictment of a president and the consideration of his impeachment by blocking information from reaching Congress.
The inspector general acknowledged in its report on Comey and the Clinton email investigation that in cases with heightened public interest, such as the 2004 José Padilla terrorism case, the department may publicly summarize the evidence against a person it is not charging. Likewise, in the 2014 shooting death of Michael Brown in Ferguson, Mo., the department provided an extensive public report explaining why it declined to prosecute. While the subject of that investigation might have welcomed the release of the report, it was also aimed at a public need to understand the evidence in the case.
It is difficult to imagine an investigation with a greater public interest than the Mueller probe.
To the extent that the norm barring public comment on uncharged cases seeks to protect subjects and targets who might have no way to protect themselves, that is hardly the case with Trump. He has made full use of his platform to defend himself and no doubt would continue to do so if the Mueller report were released.
The well-justified presumption that prosecutors should not speak when they do not charge has little application to the Mueller report. Given Congress’ significant role, and the public interest, burying the report because a sitting president supposedly can’t be indicted — although he can be impeached — would be nothing short of perverse.