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WASHINGTON — The swirl of speculation surrounding the Russia investigation often assumes that the special counsel, Robert S. Mueller III, will release a report of his findings that will serve as the definitive explanation of how Russia interfered in the 2016 election and whether President Trump or his associates coordinated with Moscow.
But there is no such guarantee. The law does not require the Justice Department to release a report, and Mr. Mueller has been silent on the issue. Mr. Trump’s nominee for attorney general, William P. Barr, said at his confirmation hearing on Tuesday that he wanted to release as much of what Mr. Mueller found as possible. But he said he needed to learn more about the report and the regulations that govern his releasing information from it before deciding what to do about disclosing the findings.
That answer did not satisfy leading Senate Democrats, who said on Wednesday that they would oppose Mr. Barr’s nomination unless he agreed to release the entire report Mr. Mueller produces, except for redactions of sensitive national security information.
Why do people assume that a Mueller report is coming?
Because the government has issued plenty of big reports after important investigations into national catastrophes and scandals. Commissions that investigated the Sept. 11 attacks and the failure to find weapons of mass destruction after the invasion of Iraq, for example, produced book-length public reports that became part of the historical record.
Similarly, Ken Starr, the independent counsel who investigated President Bill Clinton over the Whitewater and Monica Lewinsky scandals, gave Congress a long report that lawmakers voted to make public. It provided a detailed narrative description of the evidence, including lurid sexual details, and extensive legal analysis of potential crimes by the president.
That does not always happen. Nearly a half-century ago, the special counsel investigating President Richard M. Nixon over the Watergate scandal, Leon Jaworski, had a grand jury send to Congress a terse report containing spare factual statements with citations of evidence and no legal analysis. This report, known as the “Road Map,” was kept secret until last year.
But Mr. Mueller is working under a different set of rules than any of those investigators.
What do the current rules say?
In 1999, partly in reaction to perceptions that Mr. Starr had overreached, Congress let the independent counsel law expire. The Justice Department wrote new regulations allowing for special counsels who can investigate high-level executive-branch wrongdoing with some day-to-day independence but ultimately under the supervision of the attorney general.
The officials who wrote the regulations sought to prevent the sort of “extravagant” steps Mr. Starr had taken in writing his report, according to Neal Katyal, a former Justice Department official who drafted the rules.
“There is no doubt that when you are writing regs like that in the midst of a really public thing like the Starr Report, it’s going to influence your thinking, and definitely it did,” he said. “There were concerns about the privacy violations that occurred in the Starr Report.”
The regulation instructs Mr. Mueller to give the attorney general “a confidential report” when he has finished his investigation explaining his decisions about whom to prosecute and whom not to charge. The attorney general, in turn, must send a report to Congress explaining why the work has concluded. The attorney general is also free to decide that issuing that report would be in the public interest, as long as it is released lawfully.
The Justice Department’s explanation of the special counsel regulations, filed in the Federal Register in 1999, criticized the old independent counsel law’s system where prosecutors filed reports directly to Congress that typically were made public, as in the Starr investigation.
Instead, officials called for special counsels to write confidential summaries to the attorney general about their charging decisions and for the attorney general’s report to Congress to be a “brief notification” that the investigation was closed and why.
To be sure, Mr. Mueller has already disclosed significant investigative findings by writing and unsealing lengthy narrative indictments, especially of Russians involved in the operations to manipulate American social media and hack Democratic emails. But that method has limited value for understanding the actions of people he does not indict.
How does Barr view the issue?
He has said he is still trying to figure it out.
While Mr. Barr repeatedly emphasized that he wants to make public as much information as he can about the special counsel investigation, he stopped short of making commitments — emphasizing that certain rules might hamstring him and that he had not yet been briefed on Mr. Mueller’s investigation. He also said he wanted to speak to Mr. Mueller and Rod J. Rosenstein, the deputy attorney general who appointed the special counsel, to see what they were already thinking.
“I don’t know what, at the end of the day, what will be releasable,” he said at his confirmation hearing. “I don’t know what Bob Mueller is writing.”
Mr. Barr left open possibilities including drafting his own summary of the findings, should he be confirmed as attorney general, as expected.
“There are different reports at work here,” Mr. Barr said. “Under the current regulations, the special counsel report is confidential, and the report that goes public would be a report by the attorney general.”
That answer failed to placate Democrats and left confusion about his ultimate intentions. On Wednesday, one of the witnesses at his hearing, Neil Kinkopf, a Georgia State University law professor and former Justice Department official in the Obama and Clinton administrations, flagged the ambiguity with concern, saying Mr. Barr seemed to be interpreting the regulation to mean that the attorney general should release his own report, not turn over Mr. Mueller’s.
What information might Barr withhold?
Whether Mr. Barr ends up relaying a redacted version of Mr. Mueller’s report or instead writes his own, he most likely will have to keep grand jury testimony secret.
He also may withhold classified information that could reveal intelligence sources and methods still being used to spy on the Russian government, like any moles or wiretaps.
Mr. Barr also noted that the Justice Department typically keeps confidential so-called declination memos where prosecutors explain what they uncovered about anyone they decide not to prosecute.
On Wednesday, Mr. Kinkopf noted that the Justice Department had taken the position that sitting presidents could not be indicted while in office. If Mr. Barr strictly enforces the view that department policy forbids putting out negative information about people whom prosecutors declined to charge, he said, that would prevent Justice Department officials from releasing information about Mr. Trump’s actions.
Mr. Katyal said there was one way around that. The special counsel regulation requires Mr. Barr to tell Congress about any instance in which he overruled a step Mr. Mueller proposed, so if Mr. Mueller were to suggest indicting Mr. Trump, the attorney general report would have to discuss that.
How else can we find out what Mueller learned?
For one thing, information could leak to the news media. If any Mueller report is leaked, that would most likely cause a firestorm, especially if it contained unredacted classified information and evidence subject to grand-jury secrecy rules.
The House Judiciary Committee, now controlled by Democrats, could also seek to subpoena the report. If Mr. Trump asserts executive privilege to avoid turning it over, the House could ask a judge to order it handed over.
House Democrats could similarly seek to subpoena Mr. Mueller to testify about his findings. Mr. Trump could also seek to gag Mr. Mueller by invoking executive privilege, although it is not clear that he would succeed.
Could Trump block or edit a report to Congress?
The president’s personal lawyer Rudolph W. Giuliani has suggested that in addition to potentially invoking executive privilege, the White House may seek to edit a report that will go to Congress “so we can correct it if they’re wrong.”
Mr. Barr said on Tuesday that he would not allow such a move: “That will not happen.”
Michael Novakhov – SharedNewsLinks℠
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