The Washington Post says that Special Counsel Robert Mueller told President Donald Trump‘s lawyers that he was preparing a report about potential obstruction of justice by the President, but, as I noted recently, it may not be so easy to get any such report released, at least to the public.
Newsmax, in discussing such a report, suggests that Chief Judge Beryl Howell might try to follow a strategy which was virtually unheard of when I first publicized it as a possible way to deal with problems of conflict of interest in the early stages of grand jury investigations of Watergate.
In discussing whether or not Mueller has the legal authority to issue a report suggesting wrongdoing by the President – wrongdoing which might even be sufficient for impeachment – Newsmax says:
The Fifth Circuit found in a 1973 ruling: ‘There is persuasive authority and considerable historical data to support a holding that federal grand juries have authority to issue reports which do not indict for crime, in addition to their authority to indict.’ The U.S. Attorney’s Manual notes that this ‘power to issue reports’ exists in common law.
But I noted that Mueller is not a typical prosecutor operating a typical grand jury, nor is he like independent counsel Kenneth Starr who was able to issue a report damning President Bill Clinton because Starr was appointed under a special statute which not only permitted but required that he submit to Congress a report if he found any “evidence which might warrant impeachment.”
The special statute under which Starr had been appointed has long since expired, and Mueller was appointed special counsel by Deputy Attorney General Rod Rosenstein under Department of Justice [DOJ] regulations which also bind him as special counsel. These DOJ regulations do not require or even permit a public report from Mueller. Instead, they make it very difficult for any such findings to become public.
The DOJ regulations, specifically Section 600.8, require the special counsel to provide a “CONFIDENTIAL report explaining the prosecution or declination decisions reached by the Special Counsel,” [emphasis added] but only to the Attorney General. In this situation, since AG Jeff Sessions has recused himself from anything involving the Russian probe, that “confidential report” would presumably go only to Rosenstein.
Moreover, if Mueller does find that impeachment should be considered – technically that “other governmental action outside the criminal justice system might be appropriate” – he may “consult [ONLY] with the Attorney General with respect to the appropriate component to take any necessary action.”
But it’s not clear that Rosenstein, who was appointed by Trump, and who has been under very heavy pressure from the President, would release any such report, especially since the law doesn’t require him to do so. If he does want to, however, any such release must “comply with applicable legal restrictions.”
One of those restrictions is that evidence obtained through the grand jury mechanism generally cannot be disclosed. But, since it appears that much of whatever evidence Mueller may have obtained regarding Trump came to him through the grand jury, a report from Mueller from which any such evidence was removed or redacted would probably be very empty and near worthless.
In addition, much of the evidence Mueller probably has – including FISA warrants, NSA intercepts, data from intelligence agencies, etc. – is likely to be classified. Such information might, under some circumstances, be disclosed to some members of Congress who have been given an appropriate security clearance, but this is a far cry from releasing it to the general public.
In summary, unlike Starr and other independent counsel, and unlike other U.S. attorneys working with grand juries, if Mueller did discover evidence suggesting that Trump committed one or more crimes, and/or engaged in other activities which might warrant impeachment, he may have no easy way to present this information to the entire Congress, much less to the American people. One possibility, although the DOJ thinks it would be unconstitutional, would be to indict Trump, even if any such trial might have to wait until he is no longer president.
The Newsmax article suggests that if Mueller is fired, the Chief Judge might appoint a new special counsel (originally called a special prosecutor) using her inherent judicial power to make such an appointment, independent of any need to rely upon a statute or existing regulations.
Ironically, as the article points out, that’s exactly what I originally proposed in the Watergate situation:
But who would present evidence once Cox was gone? Sirica had an answer to that, too. He would appoint the new special counsel, acting on his authority as chief judge. He rebuffed an intervention by public-interest lawyer John F. Banzhaf III seeking to reverse Cox’s firing, and made a bold affirmation of his judicial power.
As it turned out, Sirica never had to make such an appointment. Rather, the publicity my original but rebuffed request to Sirica for the appointment of a special prosecutor brought to the attention of Congress and the public the concept of a special prosecutor/counsel who would be relatively independent from presidential control.
The then-attorney general was thus pressured to appoint a special prosecutor. When that original special prosecutor, Archibald Cox, was fired in the infamous Saturday Night Massacre, Congress passed a statute authorizing the appointment of a special prosecutor who continued the Watergate investigation which led to President Richard Nixon‘s resignation.
The public was largely spared a constitutional crisis which could have occurred if there were no independent investigation of alleged presidential wrongdoing in the Watergate era.
We can only hope that we will be spared a similar constitutional crisis regarding this new investigation.
[Image via SAUL LOEB/AFP/Getty Images]
This is an opinion piece. The views expressed in this article are those of just the author.