Special counsel Robert Mueller was expected to reveal more of his hand this week in hotly-anticipated court filings about three key players at the center of the Trump Russia probe.
Instead, Mueller's memos were more memorable for their redactions than new revelations, leaving outsiders to wonder what lies behind all that black ink.
But by dealing most of his cards face down, Mueller achieved something big: He blocked President Trump and his next attorney general from permanently burying whatever’s concealed within those documents, legal experts told VICE News.
“He’s putting the product of his investigation into safe hands.”
Put simply: Mueller just dispersed some of the findings of his investigation to a couple federal judges, who now have the power to safeguard, and later reveal, the key parts of the special counsel’s work directly to the public, former prosecutors said.
“He’s putting the product of his investigation into safe hands,” said Rebecca Roiphe, a former prosecutor and expert on legal ethics at New York Law School. “All that redacted material is now with a judge. Once it’s with a judge, other officials within the Department of Justice lose the power to destroy it.”
These legal Easter eggs may eventually serve as a backup plan for publicizing the investigation’s findings if the Trump administration tries to stifle Mueller’s final report, experts said — a power Trump’s attorney general may indeed try to exercise.
This week, Mueller filed a series of key documents detailing the past activities of three former top members of Trump’s inner circle:
- Michael Cohen, Trump’s longtime personal attorney and “fixer”
- Paul Manafort, Trump’s former campaign chairman
- Michael Flynn, Trump’s campaign aide and first national security advisor
Cohen’s was by far the most transparent, revealing that a mysterious Russian operative had reached out to the Trump campaign offering “political synergy” a year before the 2016 election.
And an accompanying memo filed by prosecutors in the Southern District of New York also contained a bombshell, stating that Cohen’s illegal hush-money payments to women claiming they slept with Trump were made “in coordination with and at the direction of Individual-1” — Trump.
But lengthy paragraphs about Flynn and Manafort were covered over by fat, black lines — a common practice used by prosecutors to keep sensitive information from leaking to the public during an ongoing investigation.
“These plea agreements have been coming in a very unusual sequence, and it’s not totally clear why.”
Protecting those findings may help explain what former prosecutors have called the unusual timing of some of Mueller’s latest moves.
Typically, cooperating witnesses are sentenced only after the broader investigation is complete. But all three have been lined up for sentencing even while Mueller’s final product remains unfinished.
“These plea agreements have been coming in a very unusual sequence, and it’s not totally clear why,” said Roiphe. “But one possibility is that Mueller is deliberately entering this information into court right now, in order to preserve it in case Whitaker or someone else later tries to bury it.”
Judges, who get to read the covered up parts, typically keep such portions sealed until one of the parties involved asks for them to be opened to the public.
But the judges involved don’t have to wait for Mueller’s say-so.
A request to unseal the documents could even come from any third party that intervenes in the case — including a media outfit, legal experts said.
“Nothing the executive branch can do now can take it away.”
It wouldn’t be the first time a media-led courtroom intervention has uncovered new information in a Mueller-related case.
In April, a lawyer representing news outlets including The New York Times and CNN interrupted a Cohen hearing in a New York courtroom to argue that one of Cohen’s mystery clients should be identified due to “intense public interest.”
The judge agreed, and revealed Cohen’s legal client was none other than the prominent conservative talk show host Sean Hannity.
The many redacted paragraphs in Mueller’s latest filings are like buried time bombs waiting to go off in a similar fashion, under the right circumstances, legal experts said.
“Mueller’s team now has a failsafe. If the judge ever decides there’s a legitimate reason to release this information to another prosecutor’s office, or to the public, the judge can order that,” said Ilene Jaroslaw, a former prosecutor and now partner at Hoguet Newman Regal & Kenney. “Nothing the executive branch can do now can take it away.”
Mueller has already made it much harder for Trump to stunt the Russia investigation, by spinning off lines of inquiry to other offices.
In handing off cases to investigators in New York, Washington, and at the National Security Division of the Department of Justice, Mueller ensured that his operation will live on even if he’s fired, legal experts said.
Mueller’s marching orders call for him to submit a “confidential” final report to the attorney general. While the AG would have to inform Congress about any moves that Mueller requested but were denied, the final report could in theory stay under wraps.
In November, Trump fired his first attorney general, Jeff Sessions, after blasting him repeatedly on Twitter for failing to protect him from the Mueller investigation. Trump then installed Matt Whitaker, a former U.S. attorney with a thin resume who’s been publicly critical of Mueller’s work on cable TV, going so far as to outline how he could stifle the probe.
The switch prompted concerns across Washington that Whitaker was appointed simply to slow or stop Mueller’s team.
Thanks to a blue wave in the midterms, Democrats now have some recourse in case that happens. Democratic leaders are widely expected to wield their newfound subpoena power to obtain key information from the DOJ and the White House, with Mueller’s report likely to top that list. They could even even call Mueller himself to testify about his conclusions in open hearings.
Democrats would likely win that battle for the report, said William Treanor, who served as the associate counsel in the Office of Independent Counsel during the Iran-Contra investigation in the 1980s.
“Case law suggests the court would probably enforce a subpoena” for the Mueller report, Treanor said.
But there’s no guarantee. Now, Mueller has an insurance policy.
Cover image: Then-FBI Director Robert Mueller testifies on Capitol Hill in Washington, Tuesday, March 19, 2013, before multiple House subcommittees on the FBI's budget. (AP Photo/Molly Riley)