Malacandra.me

Will the report become public? One expert weighs in.

Will the report become public? One expert weighs in.

by digby

Neal Katyal, former acting Solicitor General and Professor of National Security Law at Georgetown University Law Center wrote the current Special Prosecutor policy for the Department of Justice.

He posted this twitter thread yesterday:

THREAD ON WHETHER MUELLER REPORT WILL BE PUBLIC, AND @washingtonpost STORY ABOUT TRUMP HIRING MANY NEW LAWYERS TO ASSERT EXEC PRIVILEGE.

Short Answer: It will be public.

The special counsel rules, which I drafted at DOJ 20 years ago, contemplate 2 kinds of reports. One is a report from Mueller to the AG, at the close of his investigation: “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”

That document is to be confidential. But there is a second, separate reporting requirement, which forces the AG to notify Congress “with an explanation for each action…upon conclusion of the Special Counsel’s investigation, including  a description and explanation of instances (if any) in which the AG concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” 

That report must explain why the investigation has concluded, and any instance in which the AG overruled the Special Counsel.  The provision was designed to ensure “Congressional and public confidence in the integrity of the process.”

Notably, we wrote the circumstances for an AG to overrule a Special Counsel very tightly—it has to violate “established Departmental practices.”

So, to take one hypothetical example, generic DOJ opinions about whether a sitting President could be indicted do not create an “established Departmental practice” about whether an individual could be indicted for successfully cheating in a Presidential election.

There is no DOJ established practice that says if a Presidential candidate cheats enough and wins the Presidency, that he gets a get-out-of-jail-free card.

There is one other important aspect to the regulations. If a Special Counsel is worried that the AG may cover something up, the regs give him an important weapon.

Because they require a mandatory report to Congress about any instance of the AG overruling a Special Counsel, they put the thumb on the scale of a Special Counsel telling the AG he will take a sensitive act and waiting for AG to say no. That triggers the reporting requirement.

It is a safeguard to prevent a cover-up, it creates a mandatory report to a separate and coequal branch of govt.  So that is why I believe Mueller has a move left to play if Whitaker or Barr (if confirmed) try to stymie him and his full report.

Now the President can try to claim executive privilege. Nixon tried that, it didn’t turn out so well. He got crushed in the Supreme Court. Trump’s claim appears even weaker—much wont even concern presidential deliberations&the part that might (Comey) has been waived by Trump.

And here, there is another problem: Trump’s legal team has been saying they don’t think a sitting President can be indicted.

Leaving aside the point above in (6) and (7), the only way that claim makes any sense is if the President must be impeached first. Every real scholar who says a sitting President can’t be indicted couples that with a view that impeachment is the remedy.

So if the President asserts the view he can’t be indicted, he has to allow the turnover of all investigative material to Congress.  Otherwise he would be no different than King George III, literally above the law.

This point is fleshed out in my NYT op-ed below. The key point is that even if you think Trump won't be indicted, his legal claims about his immunity from indictment set up&invite the launch of impeachment investigation+eviscerate his exec priv claims. 

Bottom line: the President can try to hide the Mueller Report. He will lose to the public’s right to know.

I hope he's right.