The special counsel’s investigation is likely hurtling toward a conclusion. Buckle up.
By NELSON W. CUNNINGHAM May 29, 2018
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THE FRIDAY COVER
George Conway is pictured. | Getty Images
Special Counsel Robert Mueller may well be in the final stages of wrapping up his principal investigation. Last week, I argued here in Politico that Mueller will want to avoid interfering with the November midterms, and so will try to conclude by July or August. On this one we can believe Trump’s new lawyer, former prosecutor and New York mayor Rudy Giuliani, who claims Mueller’s target is September 1.
How will Mueller wrap up his investigation? What will he produce? And then – what can we expect from the other players in this saga: Deputy Attorney General Rod Rosenstein, President Trump and his lawyers, and the Republican and Democratic leaders in Congress?
As a former prosecutor and Senate Judiciary and White House lawyer who has carefully studied presidential investigations since Watergate, the next steps in this constitutional dance seem clear. Mark Twain was certainly right when he said, “History does not repeat itself, but it often rhymes.” And this summer may well be the most consequential in presidential politics since 1974, the year Watergate came to a head. Here’s what could happen:
Mueller will not indict the president, but will issue a comprehensive and detailed report.
None of us outside the famously tight-lipped Special Counsel’s Office can know what Mueller will conclude. Will it rival Watergate? Not yet clear. But we do know that the modern standard for impeachment was set in 1998, when independent counsel Kenneth Starr and a Republican House concluded that one instance of lying under oath about a sexual indiscretion was enough. Starr even concluded that he had the authority to indict President Clinton on those grounds, though he did not do so. If that is the standard, Mueller’s findings involving President Trump will easily clear that very low bar.
But a presidential indictment would take Mueller down a constitutional rabbit hole from which he might not emerge for years. It would also be contrary to long-standing Justice Department policy, and Mueller, a careful institutionalist, is required to follow department policy where he can. So no indictment. Here too, we can believe Giuliani.
There may well be other indictments, against lesser figures involved in Russian meddling, obstruction of justice and other alleged crimes. Mueller might even name Trump an “unindicted co-conspirator” in some of these crimes, just as Watergate Special Prosecutor Leon Jaworski named Richard Nixon in 1974. A bold move, but with a clear historical precedent, and just what we could expect from a former Marine, homicide prosecutor and FBI director known for hitting fairly – but hard.
Still, Mueller’s principal product will likely be a comprehensive, detailed report and set of recommendations – just like the Starr Report of 20 years ago. But unlike the Starr Report, Mueller’s may never see the light of day. Under the special counsel regulations guiding his appointment, Mueller would submit his report to Deputy Attorney General Rod Rosenstein, not to Congress or the public. And under those regulations, his report will remain confidential unless Rosenstein decides to release it.
That takes us to the next couplet in this classic Washington rhyme of history. What will Rosenstein do?
Rod Rosenstein will decide to release the report to Congress and the public.
Rosenstein can release the report, but he is not required to. The only information he must transmit – to the Republican and Democratic leaders of the Judiciary Committees in each house – is the fact that he has received a report, and any disagreement he may have with Mueller’s suggested recommendations. But the fate of the report itself is in his hands.
Why do I predict Rosenstein will seek to release the report itself? Because he, like Mueller, has shown he is a by-the-books prosecutor who will wish to ensure that politics play no part in his decisions. Though he is a Republican appointed by two Republican presidents, George W. Bush and Donald Trump (he even served on Starr’s impeachment team), Rosenstein has been subjected to withering pressure from the White House and the Congress over the past year. Nevertheless, he has stood by Mueller and his investigation, even as he has sought to placate Trump where absolutely necessary. He will know that Mueller’s final report, whether it incriminates or exonerates, will be one of the most consequential documents of this presidency. It is almost inconceivable that someone with Rosenstein’s sense of integrity and service would sit on such a report.
But in releasing the report, Rosenstein will need to protect information collected by grand jury subpoena, and factor the bedrock principle that prosecutors should not seek to malign those not formally charged. Remember, it was Rosenstein himself who justified former FBI director Jim Comey’s firing in part because “we do not hold press conferences to release derogatory information about the subject of a declined criminal prosecution. It is a textbook principle.”
Unlike Starr, who was required to release his final report under a now-expired statute, Rosenstein will need to balance the manifest public interest in learning the findings of Mueller’s sweeping investigation against the very real restrictions on releasing grand jury materials. And, of course, much of Mueller’s evidence will be classified – FISA warrants, NSA intercepts, intelligence findings.
So Rosenstein’s path to a release of Mueller’s report will not be straightforward. Perhaps he might send the full report to the leadership of the Judiciary Committees, as the D.C. Circuit Court of Appeals approved in 1974 when Jaworski sought to do the same with his Watergate report. For the public’s benefit, Rosenstein might release a highly edited executive summary that would aim to protect grand jury and national security secrecy while getting out the basic facts and recommendations.
And that, in all likelihood, will lead to a constitutional crisis.
Rosenstein’s move to release the Mueller report will lead to his firing and perhaps another Saturday Night Massacre.
President Trump is unlikely to sit by and simply watch Rosenstein move forward with a potentially explosive report. Trump and his lawyers will exert every conceivable pressure on the deputy attorney general. Their goal will be to contain the report; to redact and reduce it; and, at the very least, to delay any release until after the midterm elections.
(Think of the February 2018 controversy over the Nunes memorandum on the Carter Page FISA application, which sailed to the public unredacted by the Trump White House, despite the FBI’s and Intelligence Community’s loudly expressed national security concerns. By contrast, when the minority Democrats tried to release their rebuttal, the Republican majority delayed sending it out and the White House oversaw substantial redactions that rendered the document almost (REDACTED). Expect more of the same here.)
And what if Rosenstein insists on releasing over the president’s objections? Trump will almost certainly fire him, as he has reportedly threatened to do so many times already. Recall, he did not hesitate to fire Comey just over a year ago because of “this Russia thing.” And so Trump may follow the example of Nixon in October 1973 when he ordered the firing of Archibald Cox in the famous Saturday Night Massacre, which also took down the attorney general and deputy attorney general who refused to go along.
Thus, the constitutional crisis. Again, we can expect history to rhyme. Attorney General Jeff Sessions may well go also – either jumping or being pushed. Sessions has also been subjected to withering criticism from Trump, and has also upheld the department’s traditional values and positions in numerous heated White House-Justice battles. So Trump may fire him as well. Even if he doesn’t, Sessions may well recall that the heroes of the Saturday Night Massacre were not those who carried out Nixon’s order, but those who resigned.
And this is when the Senate and the Congress might finally engage.
Trump will need to fill Rosenstein’s seat, and maybe Sessions’. And he might face a Senate experiencing just enough of a bipartisan revolt to block any nominee in protest. As Republican Judiciary Chairman Grassley archly tweeted last year when Trump first threatened Sessions, “the agenda for the judiciary [sic] Comm is set . . . AG no way.”
And so ironically, Trump may have succeeded in creating narrow majorities where just enough Republicans join every Democrat to demand to see the Mueller report. If they do, court precedent says they will get it. Trump’s efforts to shut down the report could backfire spectacularly.
As for the political impact? All of this – the conclusion of Mueller’s investigation, the issuing of his report, the fight over its release and the fallout from a firing of Rosenstein – will play out loudly in public before November.
Quickly, “release the report” will become the central political axis of this political year. In these crowded months before November 6, we may see political tumult unseen since 1974. And just as then, the fate of a presidency may hang in the balance.
Enjoy your summer.
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Nelson W. Cunningham has served as a federal prosecutor in the Southern District of New York under Rudolph Giuliani, general counsel of the Senate Judiciary Committee under then-chair Joseph R. Biden, and general counsel of the White House Office of Administration under Bill Clinton. He is now president of McLarty Associates, an international strategic advisory firm based in Washington.