I am skeptical that special counsel Robert S. Mueller III will conclude that President Trump acted entirely appropriately regarding the FBI’s inquiry into potential crimes connected to Russia’s meddling in a U.S. election. Mueller, a career law enforcement official and former FBI director, is far more likely to find that the president’s behavior was improper and perhaps even amounted to obstruction of justice.
Then what? Will the president be charged with a crime? Will Mueller send a report to Congress so that it can initiate impeachment hearings? I think he will do neither. But that isn’t the end of the discussion.
No U.S. president has ever been charged with a crime, and not because all of them were angels. There are good legal arguments that it is unconstitutional to indict a sitting president, particularly in light of the impeachment remedy. Even if a president can be indicted, there is reason to conclude that a criminal prosecution would be unwise. An indictment would begin a long, contentious court fight, which would disrupt and perhaps destabilize the government, and which would have an uncertain end. Would a court sanction the arrest of the president? Would the attorney general order the FBI or U.S. marshals to take him into custody? Could the president pardon himself?
Even the irrepressibly aggressive independent counsel Kenneth Starr declined to seek an indictment of President Clinton, despite believing the facts and law supported it. Mueller almost certainly won’t take on that fight.
Perhaps the special counsel could turn the results of his investigation over to Congress, which could initiate impeachment proceedings. Starr took this route. But, unlike Starr, Mueller doesn’t have the authority to submit a report to Congress. Starr was appointed as independent counsel under a statute that authorized him to “advise the House of Representatives of any substantial and credible information … that may constitute grounds for an impeachment.” But Congress allowed that statute to expire. The regulations under which Mueller was appointed do not authorize him to disclose anything to Congress.
Could Mueller just pull a Comey and publicize his findings anyway? Perhaps, but that would be wrong, and Mueller was presumably paying attention to the justifiable bipartisan outrage that followed Comey’s disclosures about the Hillary Clinton investigation. He probably is also aware that his boss, Deputy Atty. Gen. Rod Rosenstein, called Comey’s public statements “a textbook example of what federal prosecutors and agents are taught not to do.”
So what then? Under the regulations governing the special counsel’s activities, Mueller is required to submit a report to the attorney general at the conclusion of his investigation. In this case Mueller’s report would go to Rosenstein because Atty. Gen. Jeff Sessions has recused himself. The regulations don’t dictate what the report must include. That seems to be entirely up to the special counsel. What the regulations do mandate is that Mueller’s report is to be kept “confidential.”
No U.S. president has ever been charged with a crime, and not because all of them were angels.
There is, however, an exception to the confidentiality mandate. Rosenstein may release the report if he determines that doing so “would be in the public interest, to the extent that release would comply with applicable legal restrictions.”
Assuming there are no “legal restrictions” — for example, that Mueller has not included in the report information considered secret grand jury material or that such material is redacted — Rosenstein will have a big decision to make. He will have to take into account the traditionally confidential nature of criminal investigations that don’t result in an indictment, the longstanding Department of Justice policy against public revelations, his own distaste for disclosure, and the likely dramatic effect on the government that public release of the report will cause. And he will have to weigh all that against the public’s interest in knowing about the potential misconduct of the president.
All of this assumes that Rosenstein (and Sessions) is still in his job when Mueller completes his report. It also assumes that Congress doesn’t subpoena the report, in which case Rosenstein, and his boss, the president, may invoke executive privilege — there are serious separation of powers issues at play — which also could throw the matter into the hands of the courts.
We can be sure that Mueller is drafting his report with an eye to how it will play to Congress and the public. We can’t be sure the public, or Congress, will ever see it.
Ross Garber co-chairs the Government Investigations Department at the law firm of Shipman & Goodwin LLP, in Connecticut. He served as lead defense counsel in impeachment proceedings of three Republican governors. @rossgarber
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