[Vision2020] Politico 10-19-18: Mueller report PSA: Prepare for disappointment

[Ted Moffett]

Vision2020 Post: Ted Moffett
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https://www.politico.com/story/2018/10/19/mueller-investigation-findings-914754

Mueller report PSA: Prepare for disappointment

And be forewarned that the special counsel’s findings may never be made
public.

By DARREN SAMUELSOHN <https://www.politico.com/staff/darren-samuelsohn>

10/19/2018

President Donald Trump's critics have spent the past 17 months anticipating
what some expect will be among the most thrilling events of their lives:
special counsel Robert Mueller’s final report on Russian 2016 election
interference.

They may be in for a disappointment.

That’s the word POLITICO got from defense lawyers working on the Russia
probe and more than 15 former government officials with investigation
experience spanning Watergate to the 2016 election case. The public, they
say, shouldn’t expect a comprehensive and presidency-wrecking account of
Kremlin meddling and alleged obstruction of justice by Trump — not to
mention an explanation of the myriad subplots
<https://www.politico.com/interactives/2018/trump-russia-investigation-ties/>
that have bedeviled lawmakers, journalists and amateur Mueller sleuths
<https://www.politico.com/story/2017/08/20/trump-bombshells-robert-mueller-sleuthing-241811>
.

Perhaps most unsatisfying: Mueller’s findings may never even see the light
of day.

“That’s just the way this works,” said John Q. Barrett, a former associate
counsel who worked under independent counsel Lawrence Walsh during the
Reagan-era investigation into secret U.S. arms sales to Iran. “Mueller is a
criminal investigator. He’s not government oversight, and he’s not a
historian.”

All of this may sound like a buzzkill after two years of intense news
coverage depicting a potential conspiracy between the Kremlin and Trump’s
campaign, plus the scores of tweets from the White House condemning the
Mueller probe as a “witch hunt.”

But government investigation experts are waving a giant yellow caution flag
now to warn that Mueller’s no-comment mantra
<https://www.politico.com/story/2017/10/02/robert-mueller-russia-probe-secret-243345>
is unlikely to give way to a tell-all final report and an accompanying
blitz of media interviews and public testimony on Capitol Hill.

“He won’t be a good witness,” said Paul Rosenzweig, a former senior counsel
to independent counsel Kenneth Starr now working as a senior fellow at the
nonprofit R Street Institute. “His answers will be, ‘yes’, ‘no’ and
‘maybe.’”

For starters, Mueller isn’t operating under the same ground rules as past
high-profile government probes, including the Reagan-era investigation into
Iranian arms sale and whether President Bill Clinton lied during a
deposition about his extramarital affair with a White House intern. Those
examinations worked under the guidelines of a post-Watergate law that
expired in 1999 that required investigators to submit findings to Congress
if they found impeachable offenses, a mandate that led to Starr’s salacious
report that upended Clinton’s second term.

Mueller’s reporting mandate
<https://www.law.cornell.edu/cfr/text/28/part-600> is much different. He
must notify his Justice Department supervisor — currently Deputy Attorney
General Rod Rosenstein — on his budgeting needs and all “significant
events” made by his office, including indictments, guilty pleas and
subpoenas.

When Mueller is finished, he must turn in a “confidential report explaining
the prosecution or declination decisions” — essentially why he chose to
bring charges against some people but not others. His reasoning, according
to veterans of such investigations, could be as simple as “there wasn’t
enough evidence” to support a winning court case.

Then, it will be up to DOJ leaders to make the politically turbo-charged
decision of whether to make Mueller’s report public.

Government officials will first get a chance to scrub the special counsel’s
findings for classified details, though, involving everything from foreign
intelligence sources to information gleaned during grand jury testimony
that the law forbids the government from disclosing.

They’ll also have to weigh the input from a number of powerful outside
forces.

The White House, for one, has indicated it might try to butt into the
proceedings. Trump personal lawyer Rudy Giuliani said
<https://www.newyorker.com/magazine/2018/09/10/how-rudy-giuliani-turned-into-trumps-clown>
earlier this summer that the White House had reserved the right to block
the release of information in Mueller’s final report that might be covered
through executive privilege. It’s unclear how salient that legal argument
may be, but the president’s attorneys have been saying for months that a
White House signoff will be needed because the Justice Department also
falls inside the executive branch.

Congress is also primed to have a say. While Democratic leaders are hoping
a return to power in the upcoming November midterms could grant them
subpoena power to pry as much information as possible from the special
counsel’s office, Republicans might try to restrict the release of certain
details that might embarrass the president.

As for the crafting of the report itself, Mueller has significant leeway.
He can theoretically be as expansive as he wants. But sources who have
worked closely with Mueller during his lengthy career at the Justice
Department say his by-the-books, conservative style is likely to win out,
suggesting he might lean more toward saying less than more.

“It’s such a unique situation. He knows there are a lot of questions he
needs to address for the sake of trying to satisfy a wide variety of
interests and expectations,” said Paul McNulty, a former deputy attorney
general from the George W. Bush administration who worked closely with
Mueller at the Justice Department.

Mueller’s report will be landing in the shadow of former FBI Director James
Comey’s controversial decision to publicly explain his reasons for not
prosecuting then-presidential candidate Hillary Clinton for her use of a
private email server during her time as secretary of state. The move was
widely panned as a breach of DOJ protocol.

“That’s not Bob Mueller’s approach,” McNulty explained. “I’d be surprised
if he did that in written form. I think he’s about, ‘Where are the facts
before us?’”

The timing on the Mueller investigation final report — the special
counsel's office declined comment for this report — remains unclear. While
he’s under no deadline to complete his work, several sources tracking the
investigation say the special counsel and his team appear eager to wrap up.
“I’m sure he’s determined to get back to the rest of his life,” said
Barrett, the Iran-Contra investigator who is now a law professor at St.
John's University.

But several factors may still slow things down, including a potential
protracted legal showdown over whether to force the president into a
sit-down interview and what to do with leads that stem from the ongoing
cooperation of former Trump campaign chairman Paul Manafort and former
Trump personal lawyer Michael Cohen. Both men pleaded guilty this summer.

Longtime Trump confidante Roger Stone has also said he’s prepared for an
indictment in the Mueller probe, which would kick-start an entirely new
trial process.

“When your investigation is ongoing, it’s hard to write a final report,”
said Michael Zeldin, a former Mueller aide who served as a deputy
independent counsel in the investigation into George H.W. Bush
administration officials fingered for accessing Clinton’s passport files
during the 1992 presidential campaign.

Indeed, history offers a mixed bag on what to expect from Mueller’s end
game. Several independent counsel investigations have concluded their work
without any report at all, including the George W. Bush-era probe into who
leaked the identity of CIA operative Valerie Plame Wilson.

And the two biggest cases since Watergate have been broken up into
bite-sized pieces, with interim reports dribbled out while the wider probes
continued. The Iran-Contra investigation published intermittent findings on
procedural issues, such as how Congress granting immunity for testimony
would impair criminal prosecution. The entire probe, however, lasted more
than seven years, with a final report
<https://fas.org/irp/offdocs/walsh/>issued
in August 1993, long after Reagan was out of the White House.

Clinton’s White House dealt with a series of independent counsel
investigations, but none as troublesome as the one that started
<https://www.nytimes.com/1994/01/21/us/counsel-granted-a-broad-mandate-in-clinton-inquiry.html>
in January 1994 into the first family’s decades-old Whitewater land deals
in Arkansas. The probe took multiple twists and expanded to cover several
other topics. In 1997, Starr issued a report,
<https://www.washingtonpost.com/wp-srv/politics/special/whitewater/stories/wwtr971011.htm>affirming
Clinton White House deputy counsel Vincent Foster had committed suicide. A
year later, he published a report
<https://www.washingtonpost.com/wp-srv/politics/special/clinton/icreport/icreport.htm>
detailing allegations of illegal behavior tied to Clinton’s affair with
Lewinsky, which prompted the House to open impeachment proceedings.

A final report
<http://ethicsstupid.com/wp-content/uploads/rays-final-report-3-6-02.pdf>
on Whitewater didn’t arrive
<https://www.nytimes.com/2002/03/21/us/final-report-by-prosecutor-on-clintons-is-released.html>
until March 2002, more than eight years after the probe started and more
than a year after the Democrat’s second term ended.

All of that history isn’t lost on Mueller.

“He knows how these Office of Special Counsel investigations can drag on,”
said McNulty, now president of Grove City College in western Pennsylvania.
“He’s seen all that over the course of his career. I just know he’s the
kind of person who’s decisive and if he thought that there was a way to not
drag something out because it could be addressed appropriately, he’d have
the determination to do that. He’s also not going to cut some corner just
to be done.”

Past investigators have also struggled with how to handle the public
release of their independent counsel reports.

In 2000, a nearly two-year investigation into Clinton Labor Secretary
Alexis Herman ended
<https://www.nytimes.com/2000/04/06/us/labor-secretary-is-cleared-in-inquiry-on-kickbacks.html>
with a one-sentence statement clearing her of influence peddling charges.
Independent counsel Ralph Lancaster’s final report was placed under a
federal court seal and he opted not to ask for permission to publicize it.

“I had decided not to exercise my prosecutorial discretion to indict her
and I didn’t see any sense in making it worse,” Lancaster said in a 2005
interview <http://www.lawinterview.com/interviewmaster_archive_11_05.html>
with lawinterview.com. “The press has never picked up on it. Nobody has
asked to see it … which is fine by me.”

Patrick Fitzgerald, the independent counsel in the Plame investigation, was
under no obligation to write a report because of the specific guidelines
<https://www.justice.gov/archive/osc/documents/2006_03_17_exhibits_a_d.pdf>
behind his appointment. Testifying before Congress as his probe was ending,
Fitzgerald defended the approach by noting that grand jury witnesses expect
secrecy when they testify. He also noted that a 2007 public trial involving
I. Lewis “Scooter” Libby, a former top aide to Vice President Dick Cheney
convicted for perjury, had revealed much of the investigation’s details.

“I think people learned a fair amount about what we did,” Fitzgerald said.
“They didn’t learn everything. But if you’re talking about a public report,
that was not provided for, and I actually believe and I’ve said it before,
I think that’s appropriate.”

Mary McCord, a Georgetown University law professor and former DOJ official
who helped oversee the FBI’s Russian meddling investigation before
Mueller’s appointment, cautioned against heightened expectations around the
special counsel’s final report.

“Don’t overread any of these facts that are in the world to suggest a quick
wrap-up and everyone is going to get a chance to read it the next day,” she
said. “It will probably be detailed because this material is detailed, but
I don’t know that it will all be made public.”

Some of the central players in the Russia saga say they, too, have become
resigned to not getting a complete set of answers out of Mueller’s work. “I
assume there are going to be lots of details we’ll never learn, and lots of
things that will never come to light,” said Robbie Mook, Clinton’s 2016
campaign manager.

But Mook added that Mueller’s efforts can be deemed a “success” if he
answers just a few questions. For example, Mook wants to know whether and
how the Russian government infiltrated the Trump campaign to influence the
election outcome. He wants to know whether there was an effort in the White
House or in the president’s orbit to cover up what happened.

“This is about big problems, not about small details,” he said. “I think we
all need to step back and look at this less as a dramatic bit of intrigue
and more as a real fundamental question of our national security.”
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