Special counsel Robert Mueller may soon submit his long-awaited report on Russian interference in the 2016 election and any contacts Trump campaign associates may have had with Kremlin officials. And while we don’t know what Mueller and his investigative team will say in that report — or what will eventually make its way to the public — there are regulations in place that present a road map for what should happen next.
Here’s what will occur after Mueller and his team submit their report:
It goes to the new attorney general, William Barr
President Trump’s newly-confirmed attorney general now oversees the Mueller investigation, and he will be the person who receives Mueller’s confidential report. In that report, according to Justice Department guidelines, Mueller must explain his “prosecution and declination decisions.” Barr will then submit a report to the Republican and Democratic leaders of the Senate and House Judiciary Committees explaining Mueller’s findings and why the investigation ended.
Justice Department guidance stipulates Barr should only submit a “brief notification” containing “an outline of the actions and the reasons for them.” What that means is probably open to some interpretation, but anyone hoping for a massive Starr Report-like document — from either Barr or Mueller — is likely to be disappointed. The current special counsel guidelines were written in large part because lawmakers decided the 1998 report by independent counsel Ken Starr, which contained graphic details about President Bill Clinton’s sexual liaisons, went too far in publicizing private misdeeds.
Barr can decide to make much of Mueller’s report public if he deems it in the public interest. But during his confirmation hearings in January, the attorney general was cagey on how much of the report he might make public, saying he would need to have a better understanding of the regulations governing the investigation and what the special counsel report would look like to make a final decision.
Alternatively, Barr’s report to Congress could contain relatively little information about Mueller’s findings.
We may never see Mueller’s full report
The report Barr receives will be confidential, and because it’s possible Mueller’s report may also contain extremely sensitive information regarding how the intelligence community collects information, much of it could stay under lock and key for some time.
Mueller’s report is likely to explain why he declined to prosecute some individuals and, as Barr noted during his confirmation hearings, the Justice Department tends not to reveal why it did not prosecute someone. However, that policy is not absolute.
“The policy is designed to protect targets of investigations if the evidence does not support indictment. This situation may be different if the Justice Department does not indict President Trump because it concludes that a sitting president cannot be indicted,” explained CBSN legal contributor Rebecca Roiphe, a professor at New York Law School and a former Manhattan assistant district attorney.
“The public interest in keeping the information private is not the same,” Roiphe added. “In fact, the public interest is the opposite, because the broad principle that no person is above the law would mean that Congress and the public must have access to the evidence to hold the president accountable through impeachment or political process.”
The current legal opinion of the Justice Department is that sitting presidents cannot be indicted. If Barr adheres to that opinion, which he is not legally bound to do, he could decide to withhold information in Mueller’s report that implicates the president.
But as legal expert Neal Katyal — who wrote the underlying regulations governing the special counsel investigation — recently explained in The New York Times, if Mueller’s report suggests that the president should be indicted, Barr would have to tell Congress whether he overruled the special counsel’s recommendation and explain that decision to lawmakers.
The purpose of the regulation, Katyal said, is partly to allow Congress to act as a check on the president if the Justice Department insists a president cannot be indicted. But the report would need to be substantive enough to help Congress do that. Grand jury testimonies contained in Mueller’s report are also likely to remain secret unless a court orders them made public. Some argue that a court could release the material if Congress issues subpoenas.
How Mueller’s report could become public
During Barr’s confirmation hearings, Senate Democrats said they wanted Mueller’s report released to the public in full, with the exception of any sensitive intelligence matters. And Barr testified before Congress that he wants to release as much of it as he can, “consistent with the law.”
If the Democratic-controlled House Judiciary Committee wants more information than Barr provides, it could also subpoena Mueller’s report, setting up a potential battle with the White House over executive privilege, national security and the role of grand juries. That would send the decision to release Mueller’s report to the judiciary.