There is some understandable concern that the now-delivered report by special counsel Robert S. Mueller III consists of only the sketchiest information that will not begin to describe to the American people the results of his two-year probe.
Much of this concern focuses on the letter of the special counsel regulations, which provide that at the conclusion of his work Mueller must provide the attorney general with a confidential report explaining the prosecution or declination decisions he reached.
Combined with Justice Department policies generally precluding commentary on declined prosecutions to protect the rights of uncharged parties, the regulation seems to set up the barest of bare-bones reports from Mueller to Attorney General William P. Barr, and from Barr, in turn, to Congress.
And Barr’s letter to congressional leaders, which hewed tightly to the letter of the regulations, suggests that his immediate revelations will be limited to a recitation of prosecutorial decisions, or, at most, a description of the evidence and reasoning behind those decisions.
But the letter hints at a more detailed set of conclusions when it begins that Mueller has concluded his investigation of Russian interference in the 2016 election. If Mueller’s work is truly done, there are good reasons to conclude that Mueller has passed along, or will before exiting the building, a far more detailed report to Barr.
First, and crucially, Mueller’s core mission is defined as conducting a counterintelligence investigation that we know began in early 2017, including any links or coordination between the Russian government and Donald Trump’s presidential campaign. That’s his first job; prosecuting the guilty comes second.
Any adequate report of Mueller’s investigation, therefore, should include far more than just who he decided to prosecute or not, as mentioned in the regulations.
Mueller’s deputy Andrew Weissmann provided a confirmation of this focus in a closed-door hearing in the Paul Manafort case. Weissmann told the judge that an August 2016 meeting between Manafort, Trump’s campaign chairman, and Russian operative Konstantin Kilimnik “goes, I think, very much to the heart of what the special counsel’s office is investigating.”
That admission clearly is a reminder that Mueller’s focus has been on the possible links between the Trump campaign and Russia, a subject both far larger and fundamentally different from identifying criminal violations.
Third is the matter of Mueller’s own public-mindedness. The dominant portrayal of the special counsel has stressed a dutiful, stay-in-his-lane personal style, and that is no doubt accurate. But he is also a famously intense patriot who urges his employees to think about what they can do for their country every day. He also has devoted his professional life to the rule of law and the integrity of the Justice Department, values that the president has attempted to savage for two years.
And on the topic of the broader public interest, that too should guide the actions of Barr, whose judgment will go a long way toward deciding what information is shared with the public and what is kept secret. Starting tomorrow, there will be an immediate tug of war with Congress for this far broader body of information.
It is worth noting that the department has often issued concluding public reports in civil rights investigations that go well beyond charging decisions. And most pertinently, in Watergate, the department special prosecutor turned over to Congress an extensive “road map” of his investigation that became the basis for Congress’s own impeachment inquiry.
A critical point is the department’s policy against indicting a sitting president, which Barr indicated at his confirmation hearings he would retain. It would be outrageous if the president were able to exploit this policy as both sword and shield: The department cannot decline to bring charges against him because of the policy but then at the same time decline to describe his conduct on the ground that he wasn’t charged.
In his confirmation hearing, Barr pledged to provide transparency to the extent permitted by law. His letter Friday suggests that he will do so with respect to Mueller’s main prosecutorial decisions. The more important topic to which we will now move is the wealth of information Mueller developed in his counterintelligence investigation.