Special counsel Robert Mueller’s report on the Trump-Russia investigation will come out on Thursday, with redactions by the US Department of Justice and Attorney General Bill Barr.
But what in the world will it look like — and what will it say?
The most consequential topic is what Mueller has found out about President Donald Trump. A leaked list of questions Mueller’s team wanted to ask Trump makes clear that they were deeply interested in what the president knew about Russian interference with the election, and in his efforts to obstruct the investigation.
Mueller’s report could be a damning, prosecutorial document asserting the president committed crimes, in the style of his indictments — effectively an impeachment referral. Alternatively, the report could be aimed more at “telling the story” of what he found, issuing conclusions about several incidents and topics — some of which could well exonerate the president. Or it could be a sparsely detailed, bare-bones “report” tersely stating that some people weren’t charged because of insufficient evidence.
There’s so much uncertainty because there’s no real direct precedent for what Mueller’s doing, and he’s said practically nothing on the record about what’s being planned. When I asked Mueller’s spokesperson Peter Carr earlier this year, he responded, “All I can point you to is the regulations that govern our office.”
Those regulations have scant details — but they do say that when the special counsel wraps up, he or she should write a report explaining “prosecution or declination decisions.” This report is filed to the attorney general, and is “confidential.”
So the type of report many have envisioned — a massive, comprehensive document summing up the investigation’s conclusions and answering the public’s questions, à la the Starr report or the 9/11 Commission report — isn’t necessarily in the cards.
But it’s not out of the question, either. The regulation’s guidelines are vague, and we just don’t know how Mueller’s interpreting them. If the special counsel and his bosses at the Justice Department want to design a report under the assumption it will be made public, they certainly have the ability to do so. By this point, they surely have a plan. We just don’t know what that plan is — or whether newly confirmed Attorney General Bill Barr might have different ideas.
1) What is the special counsel report?
Mueller was appointed to take over the Trump-Russia investigation as a special counsel — a prosecutor who would be somewhat removed from the Justice Department’s ordinary chain of command and would theoretically be able to do his work with a measure of independence (though still with a Justice Department boss).
Now, this is not the same role that Ken Starr once held during the Clinton administration. Starr was an independent counsel, operating under the authority of a law that has since expired. The special counsel was approved in 1999 to replace that old law. Here, then, is what that regulation says about a special counsel “report”:
At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
That’s it — one solitary sentence. But there are a few notable things in it:
- The report is for the attorney general — that is, not necessarily Congress or the public.
- The report is specifically said to be “confidential.”
- The report is supposed to explain “prosecution or declination decisions.”
Again, when I asked Carr, Mueller’s spokesperson, for comment on their plans for a report, he pointed me to that sentence of the regulation specifically. So take it seriously.
2) What are the main possibilities for how Mueller’s report might look?
We have little concrete information on how Mueller chose to interpret the regulation’s rather terse instruction about a report. But there appear to be two major possibilities.
First, the report could be a rather dry internal law enforcement document — one that sticks closely to the question of whether criminal activity occurred and is intended for the attorney general’s eyes only. This is what the explicit language of the regulation would seem to suggest. It calls for a “confidential” report to be delivered to the attorney general.
Second, one could also imagine a copiously detailed “Mueller report” trying to authoritatively sum up Trumpworld’s Russian contacts and Russia’s efforts to interfere with the election — one designed to tell a story about what happened, and written under the assumption that it will become public eventually. It could also be written with the understanding that it might be an impeachment referral, seen by Congress eventually.
Many have remarked that Mueller appears to be using his court filings — indictments and plea documents — to tell a story. This was particularly the case for his indictments of Russian hackers and a Russian social media propaganda operation, as well as the unusually detailed criminal information document in Paul Manafort’s plea deal (which even included exhibits).
This behavior could suggest that Mueller sees part of his job as telling the public what happened — and that he may try to do so in his eventual report. But it could also suggest the opposite — that Mueller views court filings, not this eventual report for the attorney general, as the way to answer the public’s questions.
3) Is there any historical precedent for this?
Independent counsel Kenneth Starr’s report looms large in Washington’s memory. Hundreds of pages long, divided into chapters, and eventually bound and distributed in book form, the Starr report meticulously documented every sexual encounter Bill Clinton had with Monica Lewinsky, as well as his attempt to cover up the affair. Starr’s nominal audience was Congress: It was a referral recommending Clinton’s impeachment. But it was also written as a “narrative” (as one header read) for the public’s consumption.
Again, though, Starr was an independent counsel who had quite different legal authority than Mueller does. So it’s not clear how useful that precedent is.
The only other outside special counsel named under Mueller’s particular regulation was John Danforth, appointed back in 1999 to look into federal officials’ handling of the 1993 Waco raid. (Some also point to Patrick Fitzgerald, appointed to investigate the leak of CIA agent Valerie Plame’s identity in 2003, but the Congressional Research Service points out Fitzgerald was a sitting US attorney and had different legal authority.)
At the conclusion of his work, Danforth submitted a 207-page report on his findings — which he released publicly. The report listed his conclusions on five key topics, detailed his team’s investigative methods, and contained a 71-page “statement of facts” laying out what happened. It contained relatively few redactions. One would think this would be a precedent for Mueller to follow (though the Russia investigation is far more complex, involving classified information and the president’s conduct).
But there’s another catch — Danforth was specifically instructed by then-Attorney General Janet Reno to write a final report “in a form that will permit public dissemination” to “the maximum extent possible.” So public disclosure was part of Danforth’s mission. Then-acting Attorney General Rod Rosenstein’s order appointing Mueller contained no such instruction. He could have given private orders, but if he did, we don’t know about them.
4) What will Mueller’s report cover?
Mueller has been investigating two main topics, often shorthanded as “collusion” (whether Trump associates were involved with Russian interference in the 2016 campaign) — and “obstruction” (whether Trump attempted to block or interfere with investigations).
In the “collusion” bucket, we know Mueller has investigated (among other things):
- The hacking and leaking of Democrats’ emails in 2016, and what Trump associates like George Papadopoulos and Roger Stone may have known about it
- Links and contacts between various people associated with Trump’s campaign and the Russian government, such as Donald Trump Jr.’s meeting with a Russian lawyer at Trump Tower
- Business discussions between Trump associates and Russians during the 2016 campaign, including about a “Trump Tower Moscow” project
- Trump campaign chair Paul Manafort’s ties to pro-Russian interests, including his handing over of campaign polling data to a Russian associate
- Efforts by Russia to influence US policy on sanctions and Ukraine that played out during the election and after it
- A Russian social media propaganda effort during the 2016 campaign that was designed to hurt Clinton and help Trump
- Some sort of Middle Eastern-tied effort to influence US politics and potentially the 2016 election
As part of the obstruction of justice probe, Mueller is known to have investigated:
- The circumstances around Trump’s firing of National Security Adviser Michael Flynn
- Trump’s conversations with FBI Director James Comey and his eventual firing of Comey
- Trump’s pressures on Attorney General Jeff Sessions over the Russia investigation
- Trump’s treatment of and contacts with various other Justice Department and intelligence officials, with regards to investigations implicating him or his associates
- Whether Trump or his associates may have hinted at or offered pardons to witnesses in exchange for not incriminating him
- False testimony from Trump associates to congressional committees investigating Russian interference
- Trump’s involvement in crafting a false public story about Don Jr.’s meeting with the Russian lawyer
So Mueller’s report is quite lengthy — nearly 400 pages.
Still, we don’t know for sure how many of these topics the report ended up including. For some, he may have already said what he wanted in previous indictments. Others could be unresolved — Mueller has referred some aspects of the investigation to other Justice Department prosecutors to handle.
As far as content, though, the only guidance in the regulation is that it should cover “prosecution or declination decisions reached by the special counsel” — that is, why Mueller decided to charge certain people but not others.
5) What won’t Mueller’s report cover?
There are two other major federal investigations into Trumpworld that are being handled elsewhere in the Justice Department.
The first — the probe of hush money payments to women who alleged affairs with Trump during the campaign — is being handled by the US Attorney’s Office for the Southern District of New York. (Mueller originated the case but handed it off to them.) This is the case in which Michael Cohen pleaded guilty and said he violated campaign finance law at Trump’s direction. This probe still seems to be active.
Additionally, the case of accused Russian spy Maria Butina was being handled by the US Attorney’s Office for the District of Columbia. We’ve seen no evidence that Mueller was interested in or involved in her case, so she may not make the cut for the report.
6) But what will the report say about President Trump?
There’s an elephant in the room. How do you apply the framework of a report on prosecution decisions when one subject you’ve been investigating is the president of the United States — who the Justice Department has said can’t be indicted while he’s in office?
If Mueller truly has found no criminal activity from Trump, there’s of course no problem. But if he does, what’s to be done? Seal up an indictment till Trump’s out of office? Document all his illegal conduct, but then conclude it with “we decided not to prosecute solely because he’s the president”? Or just be a legend, reject the Office of Legal Counsel’s past advice, and try to charge him anyway?
The report could be Mueller’s solution to this problem. We know from the leaked list of questions he wanted to ask Trump that he’s tried to document the president’s actions in great detail, particularly with regards to obstruction of justice. Mueller could be using his report to lay out a prosecutorial fact pattern about the president, akin to those in his indictments — under the assumption that Congress would eventually get ahold of it and consider impeachment.
Or he could have no such intention. It’s also quite possible that the report could disappoint Trump’s critics by making clear that in the end, Mueller found no evidence directly implicating the president in any conspiracy to interfere with the election, and decline to directly allege that the president’s actions qualified as criminal obstruction of justice.
7) Will the report become public?
Yes, it’s scheduled to go public on Thursday morning — but with redactions.
One significant obstacle to Mueller’s report becoming public is that the regulation clearly states that the special counsel’s report should be “confidential.” But the Justice Department said it will release the report with redactions.
There are several legitimate reasons why the Justice Department needs to make redactions:
- Classified information: Mueller’s investigation has relied a good deal on classified intelligence that he would not be permitted to release in unredacted form.
- Grand jury secrecy: There are various laws and rules around the secrecy of witness testimony and information obtained by a federal grand jury.
- Uncharged conduct: Traditional Justice Department practice is to not publicly speak about individuals they have decided not to criminally charge. James Comey famously defied this during the Clinton email investigation, and it didn’t turn out well for him. So if Mueller’s report mainly explains decisions not to charge certain individuals, should it in fact be disclosed?
However, Mueller’s team is surely well aware of all these obstacles to disclosure and have had ample time to come to an understanding with their former supervisor, Deputy Attorney General Rod Rosenstein, about how they’ll be handled. Mueller’s team has also reportedly worked with the Justice Department on the redactions.
8) But Bill Barr is attorney general now. What will he do?
Since being confirmed as attorney general, Barr has been Mueller’s boss. That means he is the person to whom Mueller delivered his report.
Then, to complicate things further, Barr has his own reporting requirements. The special counsel regulation states that:
- “Upon the conclusion of the special counsel’s investigation,” the attorney general must provide “an explanation.”
- This explanation would be provided to the chair and ranking member of the House and Senate Judiciary Committees. These are currently Reps. Jerry Nadler (D-NY) and Doug Collins (R-GA), and Sens. Lindsey Graham (R-SC) and Dianne Feinstein (D-CA).
- If the AG had overruled any “proposed action” from the special counsel, he or she would have to explain why.
- Finally, the AG “may” release this report publicly, “to the extent that release would comply with applicable legal restrictions.”
This proved to be the source of some controversy during Barr’s confirmation hearings earlier this year. Barr testified that he wanted to disclose as much as possible, within the bounds of the law. But he refused to commit to making the Mueller report public, instead focusing on the AG’s reporting requirements. Democrats cried foul, suspecting Barr planned a cover-up.
Barr wouldn’t even pledge to tell Congress what he edited/deleted from the Special Counsel report before he shares it with Congress & the American people. Not a reassuring pledge of transparency.— Richard Blumenthal (@SenBlumenthal) January 16, 2019
After Mueller submitted his report, Barr released a summary of its main findings on the questions of collusion and obstruction of justice. Quoting Mueller, Barr’s summary noted that Mueller’s query “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” It also said, again quoting Mueller, “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
The question as we wait for the full report is how far the redactions will go. Trump’s critics are worried that Barr, a close ally of the president, could try to hide important or damning information by simply redacting it.
But that could backfire: If Mueller’s prosecutors do suspect a cover-up, information could get out through leaks to the press, whistleblowing, congressional testimony, or subpoenas.
So Barr will likely have to walk a fine line with the redactions. It’s unclear just how he’ll handle it yet.
9) When’s the report coming out?
Barr said he will release the report Thursday morning, after holding a press conference at 9:30 am Eastern Time. The report is expected to be delivered to Congress and released to the public by noon.
At that point, we’ll finally get a deeper look into the Trump-Russia investigation. We don’t know yet, though, how much information will be unredacted and available to the public.