President Trump said Wednesday for the first time that he would be okay with making the Mueller report public. And in doing so, he nixed a major argument against its release.
But that doesn’t quite mean it will be available for all to see.
Ever since now-Attorney General William P. Barr testified at his confirmation hearing earlier this year that he would be constrained in releasing special counsel Robert S. Mueller III’s findings in the Russia investigation, the conventional wisdom has shifted. While many expected to see a Starr Report-style public document detailing everything Mueller found, it quickly became clear that probably would not happen -- at least initially. Mueller is operating under a different statute than Kenneth Starr was during the Clinton-Lewinsky scandal, and Justice Department guidelines prohibit revealing information about people who are not being indicted and that is obtained via grand jury.
But the reason that information generally is not released is to protect the people involved. And the most high-ranking person involved — Trump — just gave it the green light.
“I don’t mind,” he said when asked whether the report should be public. “I mean, frankly, I told the House if you want, let them see it.”
Trump went on to decry the very existence of the Mueller report (something he also did last week), arguing it is the result of an investigation that never should have been launched. He concluded by again suggesting it should be public but also indicating it may not be.
“Let it come out. Let people see it,” Trump said. “That’s up to the attorney general. And we’ll see what happens.”
As I wrote during Barr’s confirmation period, DOJ guidelines combined with Trump’s status as the sitting president created something of a Catch-22 for the Mueller report:
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.
Given all of that, what could lie ahead is a legal battle over what Barr can and will release. He has suggested he will release as much as he can, but congressional Democrats are prepared to fight, and sue, for more.
If Republicans or the Justice Department want to fight it, Trump may have just made that more difficult. Other figures in the probe who have not been indicted may still object to details of their conduct being aired publicly, but now it would seem Trump has authorized the disclosure of detail about his own conduct.
At the same time, Congress and Trump may not have much to say about the report’s ultimate release. Even if there is unanimity about releasing the report, experts say legal obstacles remain, and there’s not a whole lot politicians can do,, given this is a matter of federal law. Which means this will indeed probably be settled through the legal process.
And don’t forget that Trump himself last week suggested that fellow Republicans at least profess to be all in favor of transparency with the Mueller report. “Makes us all look good and doesn’t matter,” he assured.
“Play along with the game!” he added.
Perhaps Trump has been advised he might as well do the same — and that statements of support for the report’s public release ultimately will not matter.
But Barr does have a fair amount of discretion here, and this is such an unusual circumstance given Trump can’t be indicted. On some level, there will be judgement calls made as to what the public deserves to know about what Trump did. And I would argue the Justice Department’s case for withholding this information just became weaker.