Neal Katyal, author of Special Counsel regulations, weighs in on imminent Mueller report

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James Ledbetter / Flickr FBI MUELLER...
James Ledbetter / Flickr

The New York Times published an opinion piece by Neal Katyal, “The Mueller Report Is Coming. Here’s What to Expect.” He teased the piece in a tweet:

To repeat, “If Mueller reports next week, very bad news for trump.How so?

For months, the president’s lawyers have tried to discredit Mr. Mueller and this report, but their efforts may have backfired. A concise Mueller report might act as a “road map” to investigation for the Democratic House of Representatives — and it might also lead to further criminal investigation by other prosecutors. A short Mueller report would mark the end of the beginning, not the beginning of the end.

The report is unlikely to be lengthy by design: The special counsel regulations, which I had the privilege of drafting in 1999, envision a report that is concise, “a summary” of what he found. And Mr. Mueller’s mandate is limited: to look into criminal activity and counterintelligence matters surrounding Russia and the 2016 election, as well as any obstruction of justice relating to those investigations.

The regulations require the attorney general to give Congress a report, too. The regulations speak of the need for public confidence in the administration of justice and even have a provision for public release of the attorney general’s report. In a world where Mr. Mueller was the only investigator, the pressure for a comprehensive report to the public would be overwhelming.

So, 1) lack of indictable crimes by trump & family means it’s up to Congress to act. That’s bad. 2) The result of the report could be more investigations. That’s good. 3) The AG must report to Congress, which is good, but trump’s shiny new toy handpicked protector won’t give a full report to Congress, which is bad. But Congress can subpoena the full Mueller report. Which might end up before SCOTUS. Which might protect trump. But these are all suppositions.

There’s more; please go read it.

Another “road map” was in the news recently, “The Watergate Road Map: What It Says and What It Suggests for Mueller”:

The first striking thing about the “Road Map” is that it is not written in the voice of Jaworski at all. Unlike the Starr Report, which was a report by the prosecutors who investigated President Bill Clinton, this report is a court document, a “Report and Recommendation” from the grand jury itself combined with a document entitled “Material in the Grand Jury’s Possession Having a Material Bearing on Matters Within the Primary Jurisdiction of the United States House of Representatives Committee on the Judiciary Relating to Questions of Impeachment.” The report is signed not by Jaworski but by “Foreman, June 5, 1972 Grand Jury.”

[…] The second striking feature of the document is its spareness. All descriptions of the document over the years have stressed this point. For example, James Doyle, Jaworski’s press secretary, described it in his book on the Watergate investigation as “a simple document, fifty-five pages long, with only a sentence or two on each of the pages. Each page was a reference to a page of evidence—sentences from one of the tape recordings, quotations from grand jury testimony.” Doyle wrote that, “The strength of the document was its simplicity. An inexorable logic marched through its pages. The conclusion that the President of the United States took part in a criminal conspiracy became inescapable.”

[…] This brings us to the third striking feature of the document: It is almost entirely non-argumentative. In this regards it is a world away from the Starr Report, which laid out a lengthy narrative and then included a set of legal interpretations arguing that the facts reported might be grounds for impeachment. The Road Map entirely lacks a thesis. It does not include any hypotheses about what might constitute an impeachable offense. It does not argue that Nixon committed any impeachable offense. It actually does not even argue that he committed any crimes. It simply makes a series of factual claims, each written in a spare and clinical fashion, each supported with citations to material the special prosecutor’s office provided to Congress.

Again, this was a lengthy piece that’s worth reading in its entirety.

Katyal closes:

This news may be disappointing, for various reasons, to the president’s critics and supporters alike. But the ultimate result is a good one. It means the truth is likely to come out — maybe not on the timetable anyone wants, but it will. So whenever Mr. Mueller turns in his report, do not assume that things are over. Like “The king is dead, long live the King,” the investigations here serve a purpose that transcends any one individual or law enforcement entity. This is the architecture of our Constitution, which is designed to ferret out high-level wrongdoing through a variety of channels for the American public to see.

In my not-a-lawyerly opinion, we don’t have enough legislative safeguards “to ferret out high-level wrongdoing.” Our former reliance on norms and institutions has been proven insufficient in the face of a brazen president whose corrupt acts are enabled by a complicit Congress. Right now, getting 67 Senate votes to convict looks impossible. And Russia and other countries are mucking around online, bashing Democratic candidates. I’m not as sanguine as Katyal that “the ultimate result is a good one” if there’s no practical remedy. But at least I’m less worried that the investigation could be shut down before getting actionable results.

Besides, trump’s also facing a number of state investigations, including in New York and New Jersey, that could transform his life, and not even “President Pence” could pardon him from those.

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2 Comments on "Neal Katyal, author of Special Counsel regulations, weighs in on imminent Mueller report"

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Michael owens
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Michael owens

People like trump$$$$, get away with every rotton thing they do. This wont be any different. Theres more than enough impeachable evidence, now…nobody is doing anything with it because their frightened of losing something

paul the gaul
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paul the gaul

Trump is a visible threat to our beloved constitutional Democracy: we need to stop our family bickering and get rid of him,then we can get back to our family fight! Trump is like a guy bringing a gun to a good old fashion neighborhood bar fight. everybody needs to gang up on him,take the gun, then have the bar fight!