As the nation awaits the Mueller report, a return to first principles is in order. One relevant first principle was dramatically illustrated in the breach during the waning weeks of the 2016 presidential campaign. Then–FBI Director James Comey announced at a press conference that no criminal charges would be brought against Hillary Clinton. Comey didn’t stop there, however. In that press conference, which will continue to live in infamy, Comey sharply criticized the former secretary of state for her ill-considered conduct in housing a server in her private residence, only to receive official and—not infrequently—classified information.
The nation should have risen, as one, in righteous indignation in the aftermath of the Comey press conference. In a single misadventure, Comey both seized power that was not his—the power to seek an indictment, a prerogative that was entrusted to the attorney general—and then violated one of the fundamental principles of public prosecution: Thou shalt not drag a subject or target of the investigation through the mud via public criticism. Prosecutors either seek an indictment, or remain quiet.
Robert Mueller is not your everyday prosecutor, however. Under Department of Justice policy, a sitting president cannot be indicted. This prosecutor, unlike other prosecutors, cannot indict if he finds an indictable offense. And in contrast to the practices and policies that govern thousands of federal prosecutors around the country, this former FBI director—now a special counsel—has a specific reporting obligation. That solemn obligation is not to produce a public report. He cannot seek an indictment. And he must remain quiet.
Little attention has been paid, at least in public discussion, to the parsimonious provisions of the regulations governing special counsels. Yet those regulations have been on the books for two decades, without any material change. They should have been carefully analyzed long before now, because they were triggered to much public fanfare in May 2017 by Acting Attorney General Rod Rosenstein’s appointment of Mueller to serve—and this is crucial—as a special counsel within the Department of Justice.
Under the regulations that governed his appointment and now guide his final acts, Mueller is to provide a confidential report to one person only: the attorney general. The regulations, which were promulgated during the final months of the Clinton administration, do not contemplate any sort of report sent directly from the special counsel to Congress or the general public. To the contrary, the regulations call upon the attorney general, William Barr, to receive the confidential report and then do two things: First, to notify Congress of the investigation’s completion and, second, to provide an explanation for certain specifically enumerated actions. There is no requirement for a Barr-edited version of the Mueller report.
In short, there may be no Mueller report at all, save for the confidential document that lands on Barr’s desk. And these same regulations do not require the attorney general to simply pass along a confidential report that may very well contain unflattering information about one or more individuals. Including the president.
The fact that this prosecutor, unlike other prosecutors, cannot indict if he finds an indictable offense may seem to put pressure on the attorney general to share the report with Congress, which can remedy presidential misconduct through impeachment.
But this unusual situation does not somehow work a repeal of well-established traditions of confidentiality. If the House wants to consider impeachment, it needs to do its own work. It would be odd in the extreme to ask, in effect, the executive branch to become a tool of the legislative branch in a death-struggle with the only individual identified in the Constitution as the possessor and wielder of executive power: the president. That was the old way, under the old statute. Congress did away with that approach, and wisely so.
The regulations now governing Mueller were meant to restore the traditions of the Department of Justice, which were broken when Congress enacted the special-prosecutor (or, later, independent-counsel) provisions of the Ethics in Government Act of 1978. Under that regime, reports became the warp and woof of the independent counsel’s work. Most provocatively, the statute required an independent counsel to refer matters to the House of Representatives for possible impeachment when a surprisingly low threshold of evidence was in hand—“substantial and credible information that an impeachable offense may have been committed.” I followed that requirement when I produced the so-called Starr Report, which then took on a controversial life of its own in the House in the dramatic months of 1998.
The architects of the current regulations saw all this unfold. Not surprisingly, the drafters of the new regime—the one under which Mueller operates—set themselves firmly against the revolutionary principle of factually rich prosecutorial reports. It might seem strange for me to say, but they were right to do so. The message emanating from the new regulations, issued by then–Attorney General Janet Reno, was this: Special counsel, do your job, and then inform the attorney general—in confidence—of the reasons underlying your decisions to prosecute and your determinations not to seek a prosecution (“declinations”).
This is not to say that Barr’s hands are tied. Mueller is in regulatory handcuffs, but Barr—as the attorney general—still maintains a goodly amount of discretion as to what he will choose to report to Congress. In his exercise of discretion, Barr may well opt in favor of transparency, while complying with statutory obligations not to reveal grand-jury information. (His letter to Congress said that he is “committed to as much transparency as possible,” and that he would consult with Mueller and Rosenstein to “determine what other information from the report can be released to Congress and the public consistent with the law, including the Special Counsel regulations, and the Department’s long-standing practices and policies.”)
Barr also has inherent discretion, as an officer of the Justice Department, to share whatever he intends to report to Congress with the president and the president’s lawyers. Why would he do that? To ensure that the president’s constitutionally recognized privilege—executive privilege—is dutifully safeguarded.
The attorney general also has the raw power to jettison the regulations entirely. Unlike a statute, the regulations may be dispatched by the stroke of a pen, and new ones put in place. He may determine that the public interest requires maximum transparency, as long as grand-jury secrecy is scrupulously maintained. But unless and until the attorney general takes that bold action, the current regulations stand and have the force of law.
That is perhaps the most fundamental of governing principles—the regulations are the law of the land, and must be obeyed.
So what might the underlying confidential report from the special counsel to the attorney general look like? In keeping with the regulations, it could be a short executive summary, with lots of attachments—namely, the indictments that the Mueller probe has successfully presented to grand juries in the District of Columbia and the Eastern District of Virginia.
Then again, as my friend Jonathan Turley, an astute observer of the Washington legal scene, colorfully put it not long ago, the Mueller report might “read more like War and Peace.”
But as we all peer into our respective crystal balls, and speculation abounds, we will do well to return to first principles. That means, in this case, accepting that the special counsel cannot seek an indictment, and must remain quiet.