So what’s going on here?
Part of the reason we assumed — perhaps falsely — that we would see the report is that the last time all this happened on such a major scale, we did. Independent counsel Kenneth Starr’s report on President Bill Clinton became a bestseller, in fact.
But you’ll note that Starr’s title — “independent counsel” — was different from Mueller’s. That’s because he was operating under an entirely different statute, with different rules. As Nelson W. Cunningham wrote for The Washington Post in March:
They were appointed under different authorities, with radically different rules for reporting and disclosure. Starr was required by the independent counsel statute governing his appointment not only to conduct a criminal investigation but also to submit a report to Congress if he found any evidence of impeachable offenses.However, that statute expired in 1999. Mueller was appointed under the far narrower Justice Department regulation for special counsels that replaced the independent counsel statute. Far from requiring a report to Congress of impeachable offenses, these regulations tightly circumscribe Mueller’s ability to do so....Section 600.8(c) of the regulations provides that the special counsel shall provide the attorney general with a “confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
(A “declination” decision is made when the government decides not to prosecute something.)
That’s what Barr seemed to be referencing Tuesday. “I don’t know, at the end of the day, what will be release-able," he said at one point. “The rules, I think, say the special counsel will prepare a summary report on any prosecutive or declination decisions, and that shall be confidential and be treated as any other declination or prosecutive material within the department."
Barr went on to say he would reveal as much as he could in his summary report. But he did not explain how he would decide what to make public, and the Democrats on Senate Judiciary Committee didn’t press him to clarify.
But “as much as Barr believes he can release” may not end up being very much. There are lots of reasons he could decide on less disclosure. Chief among them are grand jury rules prohibiting the disclosure of things unrelated to actual charges. Federal Rule of Criminal Procedure 6 says that, unless and until details are revealed by court order as part of an indictment or other proceeding, they must be kept secret. This is to guard against the government releasing derogatory things about people for political purposes.
This creates a unique situation with President Trump. Existing Justice Department guidelines say that a sitting president can’t be indicted — guidelines Trump legal spokesman Rudolph W. Giuliani has said Mueller will abide by. If a president can’t be indicted and the Justice Department can report only the things related to an indictment, that means any wrongdoing by Trump wouldn’t be reported.
Basically, what we learn about Trump may have to come in other criminal filings related to other figures in the case.
“If the only reason that Mueller’s grand Jury can’t file an indictment is the DOJ policy that says no indicting of sitting presidents, then Trump gets the best of both worlds: no indictment and no revealing of the evidence the grand jury saw — even though it may be more than enough to indict any other citizen of the republic," former federal prosecutor Patrick Cotter said.
Which brings us back to Cunningham’s piece:
If the special counsel finds that “other governmental action outside the criminal justice system might be appropriate,” (presumably, such as impeachment) he is empowered only to “consult with the Attorney General with respect to the appropriate component to take any necessary action.”
In other words, even if Mueller finds that Trump committed impeachable offenses, as Starr did with Clinton, his only course of action is consulting with the AG about “the appropriate component to take any necessary action.”
That could mean informing the body charged with impeachment, which is the House. But that’s not required. If Barr wants to sit on it, he could potentially do just that. He would have to do so after consulting with his close friend Mueller, of course, and burying such evidence would seem to go against many of the things Barr said Tuesday.
But there are no guarantees.
“If I’m confirmed, I’m going to go in and see what’s being contemplated and what they’ve agreed to and what their interpretation, what game plan they have in mind,” Barr said Tuesday of Mueller and Deputy Attorney General Rod J. Rosenstein.
Perhaps Barr was just being exceedingly careful about not violating Justice Department rules, but his comments should be a warning sign not to expect anything amounting to a full “Mueller report.” He, as the No. 1 official at the Justice Department, would have the discretion in a way nobody else does — which seems to be exactly what the man who appointed him has been craving.