Any report from Mueller is likely to be extremely disappointing—unless it’s the opposite

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Medill DC, cropped / Flickr robert mueller...
Medill DC, cropped / Flickr

The rumors are flying again that a “final report” from Robert Mueller will be on the desk of new Attorney General William Barr in the next week, and that Barr will then release a “summary” of this report to Congress. And here’s what everyone should expect that report to say about Donald Trump’s actions in relation to the campaign, the Moscow Project, and his not-so-subtle Inaugural bribery funds:    . That’s it. You didn’t miss it. Because it’s not there. The public should be prepared for the Mueller report to say exactly nothing about Donald Trump for two simple reasons, reasons that were spelled out before Mueller took office.

  1. The Department of Justice doesn’t believe that a sitting executive can be indicted.
  2. The Department of Justice doesn’t talk about people who were not indicted.

Here is what Rod Rosenstein said in the letter that Trump used to justify firing James Comey.

We do not hold press conferences to release derogatory information about the subject of a declined criminal investigation. Derogatory information sometimes is disclosed in the course of criminal investigations and prosecutions, but we never release it gratuitously. The Director laid out his version of the facts for the news media as if it were a closing argument, but without a trial. It is a textbook example of what federal prosecutors and agents are taught not to do.

Strict adherence to this policy would mean that Trump is guaranteed nothing but silence in any report to the public. And not just Trump. Everyone, and that means everyone, who is not subject to an indictment between now and the release of that report would never be more than Individuals 1 though 100 in any information the public receives. Jared Kushner may have discussed handing over top secret information in exchange for loan guarantees, but unless Mueller feels that the evidence rises to the level that would allow an indictment, it won’t be mentioned. Donald Trump Jr. may have schemed over ending sanctions or handing over Ukraine in return for “Russia and its government’s support for Mr Trump,” but unless Mueller finds enough to push forward with indictment, it never happened.

Throughout the whole investigation, Barr, Rosenstein, and everyone else involved have upheld the ideals of following Department of Justice guidelines, and those guidelines are an instruction manual for creating disappointment. But there is another possibility.

As far as Trump goes, the repeated insistence that the DOJ does not believe a sitting executive can face any charges means that Mueller may have found evidence that Trump dismembered kittens and sacrificed infants to Putin … but it won’t make a report. The guidelines, rigidly followed, turn any report—and in particular, any public report—into polarized black or white results. If someone is indicted, their actions can be discussed. If they were not indicted, silence reigns.

And here’s what William Barr said during Senate hearings when asked about Department of Justice guidelines against indicting an executive: “You know I haven’t read those opinions in a long time, but I see no reason to change them.” Throughout the whole investigation, even Robert Mueller has been lauded as someone who strictly applies the DOJ guidelines, who operates without seeking the limelight, and who works meticulously according to the rules.

So be prepared for a report that talks about Michael Flynn, Paul Manafort, Roger Stone, Rick Gates, and Michael Cohen … but not about Donald Trump Jr., or Jared Kushner, or Jefferson Sessions, or Erik Prince, or Aaron Nevins, or Brad Parscale, or Alexander Nix, or Felix Sater, or anyone else involved with Trump’s campaign or business. And certainly not about Donald Trump.

There is, of course, an alternative. Actually, three alternatives. First, a number of legal scholars have made compelling arguments suggesting that the “can’t indict” rule is bunk. As was broken down on MSNBC on Wednesday, Mueller might come to Barr and ask that he does indict Trump. In which case, Barr’s vague “I haven’t read it” comment might be taken as something less than a wholehearted endorsement of the idea that “interfering with the executive branch” is something that takes any criminal prosecution off the table.

Alternatively, Mueller could punt. He has already demonstrated a willingness to hand off cases and evidence to state and federal prosecutors. He may have done the same on other items related to the Moscow Project or other aspects of Trump’s business—an action that may have already been signaled by the fact that Trump Organization CFO Allen Weisselberg was given partial immunity not by the special counsel’s office, but by the Southern District of New York. Mueller’s report might consist of little but a list of cases he’s handed off to other venues.

And finally, the DOJ guidelines that enforce those black and white outcomes also include one more alternative: exceptions. Mueller could come to Barr and ask for an exception to either the rule against indicting an executive or the rule against stating the evidence against subjects of an investigation who were not indicted. He might even ask for both. Barr could then grant one or the other of these. In fact, for those who think the timing of the potential release has more to do with Mueller waiting for Barr than Barr forcing Mueller’s hand, this would seem to be almost expected. Why would Robert Mueller sit out Sessions and Whitaker but decide to go forward under Barr unless he thought he could get from Barr something that he could not obtain under one of those previous attorneys general? In fact, the news that some version of Mueller’s report could be appearing within two weeks of Barr taking his seat could be a good indicator that the new attorney general already gave Mueller what he needed to move.

Department of Justice guidelines suggest that Mueller’s report is going to be very dry and disappointing, retreading information that’s already known. Unless it’s not … in which case, hold on.

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