January 10, 2019
By Benjamin Wittes
The White House is finally bulking up with competent lawyers to face the impending confrontation its expects over Robert Mueller’s final report, reports the Washington Post—in preparation for a major showdown over executive privilege:
A beefed-up White House legal team is gearing up to prevent President Trump’s confidential discussions with top advisers from being disclosed to House Democratic investigators and revealed in the special counsel’s long-awaited report, setting the stage for a potential clash between the branches of government.
The strategy to strongly assert the president’s executive privilege on both fronts is being developed under newly arrived White House Counsel Pat Cipollone, who has hired 17 lawyers in recent weeks to help in the effort.
He is coordinating with White House lawyer Emmet Flood, who is leading the response to special counsel Robert S. Mueller III’s report on his now-20-month-long investigation into Russian interference in the 2016 campaign. Flood is based in White House Counsel’s Office but reports directly to Trump.
Meanwhile, Deputy Attorney General Rod Rosenstein is stepping down, but NBC reports that he’ll hang around until Mueller’s investigation is done and his report imminent:
A source close to Rosenstein said he intends to stay on until Mueller’s investigative and prosecutorial work is done. The source said that would mean Rosenstein would remain until early March. Several legal sources have said they expect the Mueller team to conclude its work by mid-to-late February, although they said that timeline could change based on unforeseen investigative developments.
The source said once Mueller’s work is done, the special counsel’s report to the Justice Department would follow a few weeks later, and Rosenstein would likely be gone by then.
The combination of the impending departure of Rosenstein—Mueller’s principal protector in government—the likely confirmation in the interim of attorney general designate Bill Barr, and the White House’s apparent plans for a kind of executive privilege Alamo has many commentators worried that the Mueller report, whatever it turns out to be, might never see the light of day.
Color me less worried.
Mueller can see the same clouds building on the horizon as any onlooker can. He can see them better than anyone else, in fact, because he knows critical facts that mere onlookers don’t. Most importantly, he knows what evidence he has collected and means to report.
The idea that a major problem is brewing assumes, of course, that Mueller’s findings are damning and arguably privileged—and that the damning facts might not emerge because of the assertion of privilege. But that may not be the case. If, for example, the facts are not that damning, or not so damning that they threaten Donald Trump’s presidency, they will likely come out because the president’s lawyers will want them to come out as a means of putting L’Affaire Russe to rest. If the facts are super-damning, by contrast, Mueller may be confident that no attorney general will stand in the way of their transmission to the public or Congress. It’s one thing to be an attorney general who doesn’t race to investigate the president for whom he works. It’s quite another to be an attorney general who actively covers up findings of monstrous criminality, particularly in an environment in which one can’t be certain the reality will not leak.
The facts also might be damning and, in important respects, not privileged. No executive privilege would likely protect the president against evidence that he had, for example, coaxed or encouraged a witness to lie. Executive privilege, after all, only protects confidential communications concerning the president’s performance of his duties as president. So Mueller may have confidence that the key evidence can’t be suppressed because there’s no plausible legal basis to suppress it.
But let’s assume, for a moment, that Mueller in fact has the problem that people are worried he does: imagine that the facts he wants to report are damning, that he believes it is important they reach Congress and the public, that he feels he has no legal mechanism to convey them directly, and that he’s worried that the document will thus be suppressed. What then?
In these circumstances, Mueller still has a lot of tools at his disposal. In the extreme case, for example, he can testify before Congress about his findings if he needs to, or even hold a press conference. A claim of executive privilege can give a witness who wishes not to testify a basis for staying mum; it cannot compel a witness who wants to testify to stay silent. Just ask Jim Comey.
But long before things reach that point, Mueller knows how to write a document that will be peculiarly resistant to suppression by an administration that wants to suppress it if he has concerns on that score. It actually isn’t hard to do this. I know how to do it, and I don’t have a team of experts on the subject working for me.
There are really only a few plausible bases on which the Justice Department might decline to make the Mueller Report public. The document will likely contain some classified material. It will likely contain some grand jury material, which is protected from public disclosure under Rule 6(e) of the Federal Rules of Criminal Procedure. It will probably contain some material plausibly protected by executive privilege. And it might contain information whose public disclosure would raise legitimate privacy concerns. Note that none of these concerns requires the suppression of the whole document; they all affect individual items of evidence or passages within it.
Nothing prevents Mueller from anticipating these concerns and writing an executive summary that contains no classified information, no grand jury information, no executive confidentialities and no material unduly invasive of the privacy of innocent parties. Such a summary might have to be spare, but it could certainly summarize all of Mueller’s major conclusions as to the president’s conduct. This would produce a document that would be hard to suppress even by an administration keen to do so. He could also write a table of contents that is itself telling to give readers a sense of the broader findings. (Depending on how much sensitive material there is, Mueller could even endeavor to write the body of the report itself in a fashion carefully scrubbed of all such information, relegating that material to appendices. I suspect, though I don’t know, that this would be difficult given the elements of the investigation that concern issues of counterintelligence and executive branch management.)
Particularly if Congress knew that Mueller had proceeded in this fashion, it could speedily obtain the summary of his conclusions and then, if the executive branch proved unwilling to turn over the other material, use it as a “road map”—so to speak—to both litigation and also to conducting its own investigative hearings.
To be clear, I have no reason to believe Mueller is heading down this road. I don’t know what he is planning with respect to his report. My point is simply that he is not without tools to make sure that material he thinks the public needs to see finds its way to the public. And Mueller, as we have all seen, is man who knows how to use the tools in his toolbox.