February 21, 2019
By Mikhaila Fogel, Susan Hennessey, Quinta Jurecic, Benjamin Wittes
It seems to be real this time—if perhaps a bit late for the prediction by former presidential lawyer Ty Cobb in the summer of 2017 that Robert Mueller’s investigation would be over by Thanksgiving of that year.
While Cobb was off by more than a year and a half, there are now clear signs that the special counsel’s office really is close to concluding its work. Deputy Attorney General Rod Rosenstein has set a departure date of mid-March, after reports surfaced that he would leave the Justice Department only after Mueller finished the probe. As of Feb. 20, CNN has reported that Attorney General William Barr may announce as early as next week that Mueller has completed his investigation—and that Barr plans to shortly thereafter send a confidential summary of the report to Congress. NBC’s Pete Williams likewise announced that a report from the special counsel’s office may head to the Justice Department as early as next week. And the Washington Post reported that the Justice Department is preparing for Mueller to issue a confidential report, and that Trump administration officials are concerned the report will contain information that is “politically damaging” but falls short of alleging criminal conduct.
Of course, no one outside the Department of Justice knows for certain precisely when the investigation will conclude. But perhaps more important, no one outside the Department of Justice knows what the report will contain. Nobody knows whom it will vindicate. Nobody knows whether it will conclude that the President Trump was a Russian agent or whether it will, to quote Trump himself, “totally clear the president”—or whether it will find that he obstructed justice or abused power or acted wholly within his legitimate Article II powers. Nobody knows whether it will describe conduct far worse than that which has so far come to light or whether it will debunk allegations that have unfairly haunted the president.
All of which makes the present a good moment to articulate some principles for how folks should read Mueller’s findings when they do emerge. Because the nation still remains behind what the philosopher John Rawls described as the “veil of ignorance,” it is an excellent time to set some ground rules regarding how people should engage this material, regardless of their political affiliations or view of the Russia scandal. In Rawls’s theory, people should craft rules for how to fairly set up a society behind the “veil,” when they don’t know what social advantages or disadvantages they’ll have under those rules when the veil is lifted.
A couple of caveats at the outset: We assume here for purposes of argument that the Mueller report will be factually rich, that it will both lay out detailed factual findings and analyze those factual findings under applicable law. That point, we emphasize, is actually no certainty. The regulation under which Mueller is operating does not say much about what sort of report he needs to file, as several articles on Lawfare have noted. The following analysis does not apply if Mueller’s report is more skeletal and does not show its work.
Moreover, the following assumes that the Mueller report actually becomes available in substantial part and that people are thus able to assess it. If the public or Congress receives only a summary of Mueller’s findings written by a different Justice Department office, or by the attorney general, that would raise an additional set of questions about how one should read the summary. But assuming the report gives a full accounting of the conduct at issue in the investigation and assuming we actually get to see the material at issue, the following are four principles toward reading it fairly—offered without knowing whose political views the application of those principles will help or hurt.
First, in the absence of some glaring or obvious reason to reject them, people should be prepared to accept Mueller’s prosecutorial judgments. Mueller and his team are not 13 angry Democrats today, and they will not be 13 corrupt Republicans tomorrow. They are professionals who have had access to the best factual record anyone is likely to see. The determination of whether to charge—or not to charge—a given person is an informed professional judgment entitled to the presumption of regularity. The indictments that the special counsel has brought to date are all cases in which other reasonable prosecutors in Mueller’s shoes would have likewise pursued charges. To the extent the cases have been litigated, Mueller has prevailed; there is no indication that he has brought cases that were not substantially merited. That means that if Mueller declines prosecution as it relates to other potential defendants, onlookers should presume that those decisions also reflect reasonable prosecutorial judgments.
Declinations in a politically sensitive matter of this type may happen for a variety of reasons. The facts may not be adequate to support a given prosecution. Particularly with respect to the president, there are major legal impediments to prosecution—both with respect to the application of specific statutes to the exercise of Article II powers and with respect to the threshold question of whether the president is amenable to indictment while he remains in office at all. There are also prudential factors that may counsel against bringing a given case; for example, a witness who has some exposure to possible prosecution may provide essential cooperation and prosecutors may, as a consequence, forgo charges. All of these factors are legitimate. And people should be prepared to accept the legitimacy of outcomes that don’t involve prosecutions.
Second, people should also accept the factual record described in the report in the absence of specific reason to doubt it. This does not mean that Mueller is some kind of deity, whose word on factual matters is infallible. It is, however, a recognition that Mueller has had the benefit of an elite staff of lawyers and investigators who have had access to an array of witnesses and documents and intelligence available to nobody else. This means, quite simply, that he knows more than everyone else does and is thus in a position to change the working factual record dramatically, whereas onlookers can only argue about the existing record or—in the case of investigative reporters and congressional committees—inch it forward at the margins.
As a consequence of this reality, if Mueller concludes based on the evidence he has collected that a meeting took place, the working presumption should be that the meeting took place. If he says two individuals communicated with one another on a particular subject on a particular day, let’s take that as presumptively true unless and until it is rebutted.
This principle gets slightly trickier for stories that Mueller is effectively debunking. His report, after all, is very unlikely to offer conclusions in the negative. For example, the Mueller report likely will not say that “Michael Cohen never traveled to Prague,” but might conclude instead that the investigation had not turned up any evidence that Cohen had traveled to Prague. In such a case, it might be tempting to seize on the distinction and conclude that because Mueller didn’t say that Cohen didn’t travel to Prague, the possibility that he did so is still there.
Resist this temptation; that way lies madness. If a matter has been investigated thoroughly, and the special counsel has not found evidence to support an accusation, we should consider the matter closed unless and until new information arises to support it. The basic principle, in short, is that people should take as the factual record those facts the special counsel affirmatively finds and not supplement that record with facts they wish he had found. Only if he specifically leaves a question open as unresolved should it be treated as unresolved.
Third—and this point significantly qualifies the previous one—the report only covers what it covers. There may be many lines of inquiry the public feels are relevant to L’Affaire Russe, or to ethical and legal questions about the president and his family more generally, that are not within the scope of the Mueller report. The report itself will likely address a far narrower set of questions. Mueller, after all, has clear jurisdictional limits. While countless news reports have contended that he is investigating this, that or the other thing, the investigation almost surely has behaved in a disciplined fashion that focuses on some things and leaves the rest for other actors. So while the Mueller report can be considered an authoritative record on those questions that it addresses, that it does not address some particular issue cannot be taken as evidence that Mueller investigated that issue and found it without merit.
Fourth, a decision not to prosecute does not necessarily resolve questions of morality, ethics or impeachability. It might, of course. If Mueller concludes as a factual matter that there was “NO COLLUSION!” or that there is no evidence of any sort of collusion, people should be prepared to consider not merely the criminal matter closed but the moral matter closed as well. But conversely, if Mueller finds a series of facts and concludes that those facts either do not amount to a prosecutable case or that some law bars his bringing that case, people are free to judge those facts. Fact patterns that Mueller may choose not to prosecute, or may be barred from prosecuting, may nonetheless warrant the opprobrium of all decent people. They may warrant impeachment and removal from office—the standards for impeachment being quite different from the standards of the criminal law. They may warrant civil liability.
Consider, for example, the matter of obstruction of justice. Since the dawn of the obstruction probe, the problems of bringing a criminal case against the president have been apparent. Even without accepting the broad conception of Article II authorities that William Barr advocated, there is no doubt that Article II limits to some degree the application of the obstruction statutes to the president. Moreover, indicting the president would independently violate the Justice Department’s view of his temporary immunity from criminal process. So nobody should be surprised if Mueller concludes that he cannot bring a criminal case. Such a finding that no case is plausible, however, in no sense answers the question of whether the president’s conduct is acceptable. That is a judgment for other actors, the body politic and Congress, who get to take Mueller’s factual findings and use them in their own assessments, which may legitimately proceed under altogether different standards.
“In many ways, the question of criminal prosecution is not the most important one before the public. The most important question is the president’s fitness for office, both as a political matter that will be before voters once again in less than two years and, in the interim, as a potential matter of impeachment [on which Congress must pass judgement]. These are not questions a prosecutor should answer, nor questions a prosecutor is even capable of answering. So while people should accept Mueller’s prosecutorial judgments, they should not transform declinations into character references or otherwise transform prosecutorial judgments into political judgments of propriety.”
Over the past two years, President Trump and some of his allies have carried out a relentless public relations campaign against the Mueller investigation—calling it a “Witch Hunt” and asserting that it is run by “Angry Democrats” and is “totally compromised and conflicted.” This campaign seems to be aimed at ensuring that there is not a political will to act on the report if it includes information that damages the president. Last year, the president’s lawyer Rudy Giuliani stated as much, saying that the efforts to paint the investigation as a “witch hunt” were “for public opinion …. Because eventually the decision here is going to be impeach or not impeach. Members of Congress, Democrats and Republicans, are going to be informed a lot by their constituents. And so our jury—and it should be—is the American people.”
Those who have insisted on the necessity and integrity of the investigation need to be careful not to fall into a similar trap if the Mueller report is anti-climactic or does not shed significant additional light on the conduct of the president and his associates. It is the discipline of actually believing in apolitical law enforcement that, if the report reveals “no collusion” (or no evidence of collusion), opponents of the president must be prepared to accept that result and not do as the president and some of his supporters have done: impugn the integrity of the investigators. At the same time, it is critical to remember that Mueller is a prosecutor with a limited mandate; that means there are a lot of questions his report will not answer and judgments he will not render. These questions his report might well tee up. And the judgments will be left for others.