Muller:How Much of Probe to be Public? 06/25 06:18
WASHINGTON (AP) -- America has waited a year to hear what special counsel
Robert Mueller concludes about the 2016 election, meddling by the Russians and
--- most of all --- what Donald Trump did or didn't do. But how much the nation
will learn about Mueller's findings is very much an open question.
Deputy Attorney General Rod Rosenstein may end up wrestling with a dilemma
similar to the one that tripped up fired FBI director James Comey: how much to
reveal about Trump's actions in the event the president is not indicted.
Rosenstein, who lambasted Comey for disclosing negative information about
Hillary Clinton despite not recommending her for prosecution, may himself have
to balance the extraordinary public interest in the investigation against his
admonition that investigators should not discuss allegations against people
they don't prosecute.
The quandary underscores how there's no easy or obvious end game for the
investigation, which last month reached its one-year anniversary. Though
Mueller is expected to report his findings to Rosenstein, there's no
requirement that those conclusions be made public. And whatever he decides will
unfold against the backdrop of a Justice Department inspector general report
that reaffirmed department protocol against making public statements about
people who aren't charged.
"Those are going to be the hard questions at the end of Mueller's
investigation: what is the nature of that report, and which if any parts are
provided to Congress and the public," said Georgetown law professor Marty
Lederman, a former official in the Justice Department's Office of Legal
Counsel. "There's just no way for us to know what if any parts of those reports
can be made public or should be made public or will be made public."
The investigation has hit a critical phase. A forthcoming decision by Trump
and his lawyers on whether to sit for an interview with Mueller, who is
examining whether the president sought to obstruct justice, could hasten the
conclusion of the investigation with regard to the White House. What happens
next is unclear, though Mueller has been closely conferring along the way with
Rosenstein, the No. 2 Justice Department official who appointed him special
If he decides a crime was committed, it's theoretically possible he could
seek a grand jury indictment, though that outcome is seen as questionable given
a Justice Department legal opinion against charging a sitting president.
Trump's lawyers say Mueller's team has indicated that it plans to follow that
guidance. Depending on his findings, he also could seek to name Trump as an
unindicted co-conspirator in a case against other defendants, an aggressive
step taken by the special prosecutor who investigated President Richard Nixon.
The regulations require Mueller to report his findings confidentially to
Rosenstein, who would then decide how and whether to share with Congress.
Lawmakers and the public would almost certainly demand access to that report,
no matter the conclusion; a determination of wrongdoing would presumably be
forwarded to Congress to begin impeachment proceedings, while a finding that no
crime was committed would be publicly trumpeted by Republicans as vindication
of the president.
Spokespeople for Mueller and the Justice Department declined to comment on
the options under consideration.
The easiest avenue for public disclosure in any criminal investigation is an
indictment in which prosecutors lay out their allegations. But options are much
trickier when cases close without prosecution.
In Clinton's case, Comey held an extraordinary news conference in which he
said Clinton did indeed have classified information on her private email server
and branded her and her aides as "extremely careless." But he concluded his
remarks by recommending against charges, saying no reasonable prosecutor would
bring a case.
That decision was condemned last May by Rosenstein, who said "we do not hold
press conferences to release derogatory information about the subject of a
declined criminal investigation."
Inspector General Michael Horowitz echoed that criticism in a 500-page
report this month that accused Comey of breaking from protocol. And Comey's
successor, Christopher Wray, further rebuked Comey at a congressional hearing
last week, saying, "I think the policies the department has governing
commenting publicly about uncharged conduct are there for good reason."
Solomon Wisenberg, the deputy independent counsel in the Whitewater
investigation involving President Bill Clinton, said he struggled to envision
Rosenstein making public the extent of Mueller's findings if there's no
indictment "because it would be completely inconsistent with the criticism of
Comey --- and it wouldn't be right. It wouldn't be the right thing to do."
"It's long been considered unethical to not charge someone but smear them,"
Lederman, however, said he thought it made sense to publicly release what
investigators found about Russian meddling in the 2016 presidential election,
especially if it could be relevant to helping combat the problem in the future.
"I don't think there's a problem to the extent the report would be less
focused on what Trump did wrong in the past and is focused on his ability or
willingness to deal with the Russia threat in the future," he said.
As the investigation inches toward resolution, there's not much reliable
precedent to predict the outcome here.
Independent counsel Ken Starr issued a public report on Bill Clinton, but
his appointment came under a different law and he operated independent of the
Justice Department. A special counsel investigation into the 2003 leak of a CIA
officer's identity resulted in criminal charges against a White House official,
I. Lewis "Scooter" Libby," but produced no public report summarizing the probe.
Regardless of the conclusion, the public clamor for a full accounting may
make it impossible for Mueller to wind up his investigation with only minimal
comment, said Libby's lawyer, Bill Jeffress.
"If that conclusion is simply Mueller announcing, 'I've wound up my
investigation and haven't indicted anyone else,' nobody's going to be satisfied