Now the fight for the Mueller report begins

“I think we’re in for an epic showdown between Congress and the executive branch.”
Now the fight for the Mueller report begins

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WASHINGTON — Robert Mueller has been under attack for two years, and now his report is in the line of fire.

The special counsel’s final report, which he submitted to newly confirmed Attorney General William Barr on Friday afternoon, appears destined to suffer a similar fate.

During Barr’s confirmation hearings, he promised to release “as much as I can” from Mueller’s report.

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“I am reviewing the report and anticipate that I may be in a position to advise you of the Special Counsel’s principal conclusions as soon as this weekend,” Barr wrote in a letter to Congress released Friday.

But Trump’s new AG has broad powers over what contents — if any — will get released to Congress and the public.

The special counsel’s investigation had already unearthed remarkable revelations about the president and some of his closest advisers. Mueller indicted 34 people, including 25 Russian nationals, and charged some of Trump’s closest advisers with crimes that promise to land some of them behind bars.

“I think we’re in for an epic showdown between Congress and the executive branch.”

Congressional Democrats are eager to see more, and they’re prepared to sue to get their way. And that’s where the standoff will begin: If Barr withholds Mueller’s findings, he’ll tee off a dramatic power struggle likely to engulf all three branches of government, locking Congress and the White House in a legal duel that could quickly rise to the Supreme Court.

“I think we’re in for an epic showdown between Congress and the executive branch,” said Jens David Ohlin, vice dean of Cornell Law School. “We’re going to have a knock-down-drag-out fight over this.”

The report — and the evidence

Rep. Adam Schiff

Adam Schiff, D-Calif., chairman of the House Intelligence Committee, left, speaks with Sen. Mark Warner, D-Va., at an event marking 100 days since the death of Jamal Khashoggi on Capitol Hill in Washington, Thursday, Jan. 10, 2019. (AP Photo/Andrew Harnik)

Democrats aren’t just planning to go to war for the Mueller report. They also want to see the evidence Mueller used to write it.

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“We’re going to insist on [the report] becoming public,” House Intelligence Committee chairman Rep. Adam Schiff told ABC’s “This Week” in February. “And more than that… we’re going to insist on the underlying evidence, because there is certain evidence [that’s] only in the hands of the Department of Justice that we can't get any other way.” Just after the news of the report's delivery, Sen. Mark Warner (D-Va.) said in a statement that Congress needed immediate access to the report to prevent the Trump administration from interfering. Rep. Doug Collins of Georgia, the top-ranking Republican on the House Judiciary Committee, tweeted Friday that he expects the "DOJ to release the special counsel’s report to this committee & public w/o delay & to maximum extent permitted by law."

But the report and the individual pieces of evidence lie behind several different kinds of legal safeguards that Democrats will have to pry open if they want all that information. Meaning this legal fight may take months to play out.

“There’s going to be a big clash, but the skirmishes will take place across a diverse battlefield,” said Andrew Wright, who held legal positions in both Congress and Barack Obama’s White House. “It’s going to play out document-by-document.”

The first major barrier arises directly from Mueller’s original instructions. The regulations themselves, unlike previous special counsel rules, only call for a limited report to be shared with the attorney general.

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The regulations

Mueller’s marching orders require him to send Barr a “confidential report” explaining why he dropped charges on some people but not others. Barr is required to inform congressional leaders that Mueller’s work is over and notify them about any times he overruled the special counsel.

But the regulations governing Mueller’s work leave a lot of ambiguity beyond that. Mueller’s report could be voluminous and detailed — or it could be skeletal, referring to indictments that have already been filed and asserting there wasn’t enough evidence to drop any more.

“This question of what Barr is going to disclose hinges on what kind of report Robert Mueller files in the first place,” said Andrew Coan, a law professor at the University of Arizona and the author of “Prosecuting the President,” a nonpartisan look at the history of special prosecutors.

Past reports on presidents have run the gamut.

Leon Jaworski, the special prosecutor who probed President Richard Nixon’s Watergate scandal, kept it tight: He had the grand jury send a secret, 55-page report, later dubbed the “Watergate Road Map,” to Congress. That document did not make judgements about whether Nixon deserved to be impeached but rather listed the evidence of Nixon’s participation in a criminal conspiracy.

“This question of what Barr is going to disclose hinges on what kind of report Robert Mueller files in the first place.”

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At the other end of the scale, independent counsel Ken Starr, who investigated President Bill Clinton over the Whitewater scandal, infamously delivered a book-length treatise directly to Congress.

Starr enjoyed tremendous freedom in his probe into Clinton, and his report flaunted it. Starr’s final product delved into salacious details about Clinton’s sexual relationship with White House intern Monica Lewinsky, and contained a thorough legal analysis about whether Clinton’s actions constituted grounds for impeachment. The House posted the entire Starr report online immediately, prompting one of the first big internet traffic jams and crashing multiple congressional websites.

Thanks to the perception that Starr went too far, Congress let the independent counsel law lapse in 1999.

At the time, Clinton’s Attorney General Janet Reno declared that the Ken Starr-era rules, which had allowed for Starr’s voluminous report to be shipped directly to Congress, were a “problem” because they cut against the American legal tradition that evidence against any suspect should only become become public after that person has been indicted.

“We have come to believe that the price of the final report is often too high,” Reno told the Senate in the spring of 1999. “The final report provides a forum for unfairly airing a target's dirty laundry.”

Three months later, Reno approved new regulations that dialed back the reporting requirement for what would thereafter be called a “special counsel.” Those same rules Reno approved now governing Mueller’s work.

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Neal Katyal, who helped draft those regulations, believes the forthcoming report will be more like Jaworski’s road map, writing in The New York Times that the Mueller report is “unlikely to be lengthy by design.”

Yet combining this stance in favor of brevity with standing DOJ policy that a sitting president cannot be charged with a crime raises the question of how the Department of Justice could hold any president accountable at all.

“To maintain that a sitting president cannot be indicted, and then to withhold evidence of wrongdoing from Congress because the President cannot be charged, is to convert DOJ policy into the means for a cover-up,” said Rep. Jerrold Nadler, chairman of the House Judiciary Committee, on March 14.

Mueller is likely to be keenly aware of this problem, legal experts say, but has given no public indication of how he might resolve it.

“The first thing he’s going to do is sit on the Mueller report like a hen on an egg.”

If Mueller found evidence that Trump committed a crime, but chose not to prosecute just because Trump is the president, he could ultimately decide to go out of his way to list that evidence in his final report as his only recourse, according to Coan.

That would be precisely the kind of info Congress would want to have — with an eye toward possibly launching impeachment proceedings.

“Congress would be under a constitutional obligation to investigate the facts for itself,” Katyal wrote in the Times. “Congress cannot be satisfied that impeachable offenses were not committed when Mr. Mueller’s investigative mandate did not cover many impeachable offenses, and when his report does not provide detailed information and answers to the few offenses that are within his mandate.”

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All eyes on Barr

William Barr

Attorney General nominee William Barr is sworn in before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Jan. 15, 2019. As he did almost 30 years ago, Barr is appearing before the Senate Judiciary Committee to make the case he’s qualified to serve as attorney general. (AP Photo/Carolyn Kaster)

Barr has considerable power to hold back much of Mueller’s findings and evidence, including, possibly, about any impeachable offenses, according to Charles Tiefer, who spent over a decade as a lawyer for the House of Representatives.

Trump’s new attorney general will likely begin by taking as long as he can to review the report before he shares anything, Tiefer added.

“The first thing he’s going to do is sit on the Mueller report like a hen on an egg,” Tiefer said.

Powerful House Democrats, including Nadlera and Rep. Adam Schiff, chair of the House Intelligence Committee, say they plan to wield their subpoena power to wrench the full report and as much underlying evidence as they can out of Barr’s hands.

“We will obviously subpoena the report. We will bring Bob Mueller in to testify before Congress. We will take it to court if necessary,” Schiff told ABC’s George Stephaopoulos in late February. “And in the end, I think the department understands they're going to have to make this public.”

But it’s far from certain Democrats’ efforts will succeed, according to Charles Fried, a Harvard law school professor and former U.S. solicitor general under President Ronald Reagan.

“You can conjure the spirits, but will they come?” Fried asked.

Tiefer said he estimates House Dems have a roughly “60/40” chance of actually uncovering all of Mueller’s key findings in a full-blown legal showdown with Barr.

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Barr’s own past writings indicate that he doesn’t necessarily believe Congress’ oversight function outweighs the power of executive privilege and the importance of maintaining confidentiality in an investigation, said Neil Kinkopf, a Georgia State University professor who worked in the Justice Department during the Clinton and Obama administrations.

Barr has taken a broad view of presidential powers, and stated previously in an unsolicited and now infamous memo to the DOJ about Mueller’s probe into obstruction that Trump enjoys the “complete authority to stop or start a law enforcement proceeding.”

David Rivkin, a Constitutional lawyer who held senior positions in the administrations of former presidents Ronald Reagan and George H. W. Bush, said he thinks Barr will handily slap down Congress.

“You can conjure the spirits, but will they come?”

“I have every confidence that the DOJ would prevail,” Rivkin said. “If the Department of Justice decides to withhold portions of the report, either on the basis of national security or executive privilege to protect deliberative materials, I think they’d be on extremely strong grounds.”

One way Congress could bolster its argument would be to explicitly state that it wants the report to find out whether Trump has committed any impeachable offenses, according to Kinkopf — although doing so may run the political risk of appearing to jump the gun on impeachment before the facts are known, he said.

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“It seems premature to start talking about impeachment before you’ve seen the Mueller report,” Kinkopf said. “It’s sort of Congress being forced to get out ahead of itself.”

So far, Democrat House Speaker Nancy Pelosi has appeared to deliberately tamp down any talk of impeachment.

A congressional subpoena that specifically cited possible impeachment would be “pretty unplowed ground,” added Fried.

A federal court would likely have to weigh such a request — and ultimately, the Supreme Court could be called in.

Given that two of the nine justices now on the Supreme Court were appointed by Trump, Fried isn’t sure how that contest would play out.

“We’re going to see quite a few cases in which exactly that kind of speculation will be in order,” said Fried. “Are they going to be good soldiers for Trump? Or are they going to be independent?”

Cover: Robert Mueller, right, arrives for a court hearing at the Phillip Burton Federal Building in San Francisco, Thursday, April 21, 2016. (AP Photo/Jeff Chiu)