The Mueller report no one’s talking about – By Darren Samuelsohn and Andrew Desiderio (Politico) / March 6 2019
Justice Department rules require an accounting of any time supervisors told the special counsel “no” during his work.
Most people don’t know it, but there’s another Mueller report coming.
Around the same time the special counsel sends his Russia investigation findings to the Justice Department, Attorney General William Barr must give Congress an account of every instance where Robert Mueller’s supervisors told him “no” during the course of his work.
The reporting requirement is tucked into the department regulations that Deputy Attorney General Rod Rosenstein used when he appointed Mueller. No matter what the memo says, it’s expected to be one of the few items on a fast track for being made public that will be closely scrutinized for insights into the inner workings of the special counsel’s tight-lipped investigation.
Barr’s report could very well end up being blank, which itself would be a telling reveal that gives President Donald Trump and the leaders of the Justice Department he appointed tangible proof that the special counsel was allowed to carry out his investigation without interference.
By contrast, a report that includes explosive revelations detailing instances in which Mueller clashed with his department supervisors — say, over a subpoena for the president or an indictment against a top Trump aide or family member — would open a road map for Democratic lawmakers who have already begun their own investigations into Russian interference in the 2016 elections, as well as the president’s conduct since taking office.
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“Either way, it’s significant,” said Sol Wisenberg, a former deputy on independent counsel Kenneth Starr’s investigation of President Bill Clinton. “Assuming Mueller doesn’t indict anybody else, Trump will be able to say this guy wasn’t kept at all from going anywhere he wanted to go. So I think that’s a big deal.”
“On the other hand,” Wisenberg added, “if he was kept from going somewhere, that’s a big deal too. The Democrats will make a big deal about that. I think it’s important either way.”
Mueller has not been subject to daily supervision since he took the job in May 2017 — though he hasn’t had total freedom, either. The special counsel answers to a small group of Trump-appointed Justice officials, led first by Rosenstein, then acting Attorney General Matthew Whitaker and, most recently, Barr.
Each of Mueller’s bosses had the authority to say no to the special counsel on any of his investigative or prosecutorial steps if they determined such a move was “so inappropriate or unwarranted” that it crossed “established departmental practices,” according to the regulations. But under those rules, they also were required to give the special counsel’s views “great weight” whenever there was a disagreement.
As a backstop, any and all instances in which Mueller’s supervisor rejected a proposed action must be compiled into an explanatory report delivered to the Democratic and Republican leaders of the House and Senate judiciary committees when the special counsel closes up shop.
In interviews with more than a dozen lawmakers, as well as attorneys who have worked on the Russia investigation and other legal experts, the majority view is that the report about any disputes could be all but blank — indicating that none of Mueller’s moves was denied by his superiors.
“We’ll see, but I bet you there are none,” Ty Cobb, a former Trump White House attorney, said.
On Capitol Hill, many lawmakers said they had no idea that they were set to receive such a report from the Justice Department — but not for lack of interest in its findings.
Democrats said they were particularly curious to see whether there’s anything in the other Mueller report that homes in on presidential interference in the special counsel’s work — considering Trump’s repeated criticisms of the Justice Department leadership, call to fire Mueller and decision to appoint Whitaker, who was a vocal critic of the investigation, after he fired Attorney General Jeff Sessions in November.
“My sense is that Rosenstein and the Department of Justice have given Mueller wide latitude,” said Rep. Gerry Connolly of Virginia, a senior Democratic member of the House Oversight Committee. “That’s just an impression. I don’t know that for a fact. And I’ll be surprised if I learn otherwise.”
Republicans say they’ll be looking to the final report about any Mueller rejections for a better understanding of how Justice Department leaders dealt with the scope of the special counsel’s investigation. Set up to examine Russian interference in the 2016 presidential election, Mueller’s inquiry has covered a wide range of Trump associates who had contact with Russian operatives, as well as allegations of presidential obstruction of justice.
“It will be interesting to see if he got outside the scope,” Rep. Doug Collins of Georgia, the top Republican on the Judiciary Committee, said in an interview. “Remember, he was under a scope. He wasn’t free to just go willy-nilly wherever he wants. So that’s what we’ll see — if it was a scope issue.”
While there is less concern that Rosenstein interfered improperly in the investigation, given that he first appointed Mueller, Democrats have directly questioned whether Whitaker took any actions on behalf of the president to suppress Mueller’s investigative track. Whitaker himself could come away vindicated when the special counsel completes his work if there’s nothing to report, which would line up with recent congressional testimony he gave in which he denied taking such actions.
“There’s been no event, no decision that has required me to take any action,” Whitaker told the House Judiciary Committee last month before Barr took over. “I’ve not interfered in any way with the special counsel’s investigation.”
The report describing any instances in which Mueller didn’t get Justice Department approval could become even more significant if Barr were to refrain from releasing much in the way of details about the special counsel’s overall investigation.
The top Republicans and Democrats on the House and Senate judiciary committees will be the first members of Congress to be notified when Mueller’s work is done, but all the special counsel himself is required to do under department regulations is give a confidential report to Barr detailing whom he has prosecuted and whom he declined to bring charges against. It’s then up to the attorney general to make anything from Mueller’s work public, and the most Barr has said on the topic is a vow during his Senate confirmation hearing to release a summary document.
House Judiciary Chairman Jerry Nadler, meanwhile, has threatened to issue a subpoena for the special counsel’s full report. The only acceptable redactions, the New York Democrat told POLITICO, are the most sensitive Justice Department “sources and methods, and certain grand jury information that’s secret by law.”
Rosenstein has also set off alarm bells about what will be released from the Mueller investigation. During a speech last week in Washington, the outgoing deputy attorney general suggested that the department wouldn’t make public information about someone who isn’t being charged with a crime — a suggestion that many lawmakers interpreted as meaning that Trump himself could escape further congressional scrutiny, including an impeachment proceeding.
“If we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens,” Rosenstein told an audience at the Center for Strategic and International Studies. “I know there’s a tension there.”
Democrats have argued that Congress should be able to view all of that information about Trump to determine whether impeachment is necessary, given that Justice Department policy states that a sitting president cannot be indicted.
“There’s a lot of fear around the notion that the DOJ doesn’t release information unless they do an indictment, and the DOJ also believes that the president can’t be indicted,” Rep. Jim Himes (D-Conn.), a member of the Intelligence panel, said in an interview. “That is a logical tautology that would suggest nothing need be conveyed to Congress.”
A Mueller spokesman declined to comment for this article. The Justice Department did not respond to a request for comment.
According to several legal experts and lawmakers, the requirement that Barr disclose any disagreements between Mueller and his department supervisors may have helped to keep Trump and Justice leaders from meddling with the special counsel or rejecting his moves outright.
“If you know that on the back end you’re going to have to justify yourself to Congress, it has a good deterrent effect of preventing anyone from maybe squashing something the special counsel wanted to do,” said Matthew Axelrod, a former senior official at the Justice Department during the Obama administration.
“If we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens,” said Rod Rosenstein. | Getty Images
For Rosenstein, a blank report would also back up the notion that he did not get entangled in the day-to-day operations of the investigation — something several former Justice Department officials said wouldn’t surprise them.
“I doubt that he exercised the kind of supervision that a supervisor of a line attorney would,” said William Moschella, the former head of the department’s legislative affairs office during the George W. Bush administration. He added that he didn’t think Rosenstein was “litigating this subpoena versus that subpoena, or this interview versus that interview.”
James Trusty, a former Justice official who is friends with Rosenstein, said he thinks that the Mueller-Rosenstein relationship has always been on solid footing and that any disagreements were probably resolved without triggering the reporting requirements.
“There may be differences between the special counsel and DOJ management from time to time, but unless it became a line in the sand on behalf of Mueller, I don’t think it’s going to make its way into this report,” Trusty said.
The Mueller inquiry and all of its different reporting requirements are on track to land amid a deeply partisan atmosphere on Capitol Hill, in which all sides are expected to interpret the results in whatever way benefits their political interests.
It will also set up an institutional clash between two branches of government: a Trump-led Justice Department that’s trying to adhere to its own internal regulations and oversight-hungry lawmakers.
“This isn’t the first time those two institutional forces end up in tension with one another,” Axelrod, the Obama-era official, said. “It’s just this one, because of the stakes and because of the profile, are going to really shine a spotlight on how that accommodation process works.”
He added that Barr’s disclosure of instances in which the Justice Department turned down Mueller, if there are any, would be one in a sequence of events that is part of a protracted back-and-forth about what’s appropriate to share with lawmakers.
“This is the tail of what is likely to be a very significant and large dog,” Axelrod said. “Yes, it’s something of interest. … But to me, that’s dwarfed in comparison and size to what’s in the actual meat of the report itself.”
https://www.politico.com/story/2019/03/06/mueller-report-special-counsel-1206147
