While Robert Mueller is under no deadline to complete his work, several sources tracking the investigation say the special counsel and his team appear eager to wrap up. | Win McNamee/Getty Images
And be forewarned that the special counsel’s findings may never be made public.
10/19/2018 05:20 AM EDT
President Donald Trump's critics have spent the past 17 months anticipating what some expect will be among the most thrilling events of their lives: special counsel Robert Mueller’s final report on Russian 2016 election interference.
They may be in for a disappointment.
That’s the word POLITICO got from defense lawyers working on the Russia probe and more than 15 former government officials with investigation experience spanning Watergate to the 2016 election case. The public, they say, shouldn’t expect a comprehensive and presidency-wrecking account of Kremlin meddling and alleged obstruction of justice by Trump — not to mention an explanation of the myriad subplots that have bedeviled lawmakers, journalists and amateur Mueller sleuths.
Perhaps most unsatisfying: Mueller’s findings may never even see the light of day.
“That’s just the way this works,” said John Q. Barrett, a former associate counsel who worked under independent counsel Lawrence Walsh during the Reagan-era investigation into secret U.S. arms sales to Iran. “Mueller is a criminal investigator. He’s not government oversight, and he’s not a historian.”
All of this may sound like a buzzkill after two years of intense news coverage depicting a potential conspiracy between the Kremlin and Trump’s campaign, plus the scores of tweets from the White House condemning the Mueller probe as a “witch hunt.”
But government investigation experts are waving a giant yellow caution flag now to warn that Mueller’s no-comment mantra is unlikely to give way to a tell-all final report and an accompanying blitz of media interviews and public testimony on Capitol Hill.
“He won’t be a good witness,” said Paul Rosenzweig, a former senior counsel to independent counsel Kenneth Starr now working as a senior fellow at the nonprofit R Street Institute. “His answers will be, ‘yes’, ‘no’ and ‘maybe.’”
For starters, Mueller isn’t operating under the same ground rules as past high-profile government probes, including the Reagan-era investigation into Iranian arms sale and whether President Bill Clinton lied during a deposition about his extramarital affair with a White House intern. Those examinations worked under the guidelines of a post-Watergate law that expired in 1999 that required investigators to submit findings to Congress if they found impeachable offenses, a mandate that led to Starr’s salacious report that upended Clinton’s second term.
Mueller’s reporting mandate is much different. He must notify his Justice Department supervisor — currently Deputy Attorney General Rod Rosenstein — on his budgeting needs and all “significant events” made by his office, including indictments, guilty pleas and subpoenas.
When Mueller is finished, he must turn in a “confidential report explaining the prosecution or declination decisions” — essentially why he chose to bring charges against some people but not others. His reasoning, according to veterans of such investigations, could be as simple as “there wasn’t enough evidence” to support a winning court case.
Then, it will be up to DOJ leaders to make the politically turbo-charged decision of whether to make Mueller’s report public.
Government officials will first get a chance to scrub the special counsel’s findings for classified details, though, involving everything from foreign intelligence sources to information gleaned during grand jury testimony that the law forbids the government from disclosing.
They’ll also have to weigh the input from a number of powerful outside forces.
The White House, for one, has indicated it might try to butt into the proceedings. Trump personal lawyer Rudy Giuliani said earlier this summer that the White House had reserved the right to block the release of information in Mueller’s final report that might be covered through executive privilege. It’s unclear how salient that legal argument may be, but the president’s attorneys have been saying for months that a White House signoff will be needed because the Justice Department also falls inside the executive branch.
Congress is also primed to have a say. While Democratic leaders are hoping a return to power in the upcoming November midterms could grant them subpoena power to pry as much information as possible from the special counsel’s office, Republicans might try to restrict the release of certain details that might embarrass the president.
As for the crafting of the report itself, Mueller has significant leeway. He can theoretically be as expansive as he wants. But sources who have worked closely with Mueller during his lengthy career at the Justice Department say his by-the-books, conservative style is likely to win out, suggesting he might lean more toward saying less than more.
“It’s such a unique situation. He knows there are a lot of questions he needs to address for the sake of trying to satisfy a wide variety of interests and expectations,” said Paul McNulty, a former deputy attorney general from the George W. Bush administration who worked closely with Mueller at the Justice Department.
Mueller’s report will be landing in the shadow of former FBI Director James Comey’s controversial decision to publicly explain his reasons for not prosecuting then-presidential candidate Hillary Clinton for her use of a private email server during her time as secretary of state. The move was widely panned as a breach of DOJ protocol.
“That’s not Bob Mueller’s approach,” McNulty explained. “I’d be surprised if he did that in written form. I think he’s about, ‘Where are the facts before us?’”
The timing on the Mueller investigation final report — the special counsel's office declined comment for this report — remains unclear. While he’s under no deadline to complete his work, several sources tracking the investigation say the special counsel and his team appear eager to wrap up. “I’m sure he’s determined to get back to the rest of his life,” said Barrett, the Iran-Contra investigator who is now a law professor at St. John's University.
But several factors may still slow things down, including a potential protracted legal showdown over whether to force the president into a sit-down interview and what to do with leads that stem from the ongoing cooperation of former Trump campaign chairman Paul Manafort and former Trump personal lawyer Michael Cohen. Both men pleaded guilty this summer.
Longtime Trump confidante Roger Stone has also said he’s prepared for an indictment in the Mueller probe, which would kick-start an entirely new trial process.
“When your investigation is ongoing, it’s hard to write a final report,” said Michael Zeldin, a former Mueller aide who served as a deputy independent counsel in the investigation into George H.W. Bush administration officials fingered for accessing Clinton’s passport files during the 1992 presidential campaign.
Indeed, history offers a mixed bag on what to expect from Mueller’s end game. Several independent counsel investigations have concluded their work without any report at all, including the George W. Bush-era probe into who leaked the identity of CIA operative Valerie Plame Wilson.
And the two biggest cases since Watergate have been broken up into bite-sized pieces, with interim reports dribbled out while the wider probes continued. The Iran-Contra investigation published intermittent findings on procedural issues, such as how Congress granting immunity for testimony would impair criminal prosecution. The entire probe, however, lasted more than seven years, with a final report issued in August 1993, long after Reagan was out of the White House.
Clinton’s White House dealt with a series of independent counsel investigations, but none as troublesome as the one that started in January 1994 into the first family’s decades-old Whitewater land deals in Arkansas. The probe took multiple twists and expanded to cover several other topics. In 1997, Starr issued a report, affirming Clinton White House deputy counsel Vincent Foster had committed suicide. A year later, he published a report detailing allegations of illegal behavior tied to Clinton’s affair with Lewinsky, which prompted the House to open impeachment proceedings.
A final report on Whitewater didn’t arrive until March 2002, more than eight years after the probe started and more than a year after the Democrat’s second term ended.
All of that history isn’t lost on Mueller.
“He knows how these Office of Special Counsel investigations can drag on,” said McNulty, now president of Grove City College in western Pennsylvania. “He’s seen all that over the course of his career. I just know he’s the kind of person who’s decisive and if he thought that there was a way to not drag something out because it could be addressed appropriately, he’d have the determination to do that. He’s also not going to cut some corner just to be done.”
Past investigators have also struggled with how to handle the public release of their independent counsel reports.
In 2000, a nearly two-year investigation into Clinton Labor Secretary Alexis Herman ended with a one-sentence statement clearing her of influence peddling charges. Independent counsel Ralph Lancaster’s final report was placed under a federal court seal and he opted not to ask for permission to publicize it.
“I had decided not to exercise my prosecutorial discretion to indict her and I didn’t see any sense in making it worse,” Lancaster said in a 2005 interview with lawinterview.com. “The press has never picked up on it. Nobody has asked to see it … which is fine by me.”
Patrick Fitzgerald, the independent counsel in the Plame investigation, was under no obligation to write a report because of the specific guidelines behind his appointment. Testifying before Congress as his probe was ending, Fitzgerald defended the approach by noting that grand jury witnesses expect secrecy when they testify. He also noted that a 2007 public trial involving I. Lewis “Scooter” Libby, a former top aide to Vice President Dick Cheney convicted for perjury, had revealed much of the investigation’s details.
“I think people learned a fair amount about what we did,” Fitzgerald said. “They didn’t learn everything. But if you’re talking about a public report, that was not provided for, and I actually believe and I’ve said it before, I think that’s appropriate.”
Mary McCord, a Georgetown University law professor and former DOJ official who helped oversee the FBI’s Russian meddling investigation before Mueller’s appointment, cautioned against heightened expectations around the special counsel’s final report.
“Don’t overread any of these facts that are in the world to suggest a quick wrap-up and everyone is going to get a chance to read it the next day,” she said. “It will probably be detailed because this material is detailed, but I don’t know that it will all be made public.”
Some of the central players in the Russia saga say they, too, have become resigned to not getting a complete set of answers out of Mueller’s work. “I assume there are going to be lots of details we’ll never learn, and lots of things that will never come to light,” said Robbie Mook, Clinton’s 2016 campaign manager.
But Mook added that Mueller’s efforts can be deemed a “success” if he answers just a few questions. For example, Mook wants to know whether and how the Russian government infiltrated the Trump campaign to influence the election outcome. He wants to know whether there was an effort in the White House or in the president’s orbit to cover up what happened.
“This is about big problems, not about small details,” he said. “I think we all need to step back and look at this less as a dramatic bit of intrigue and more as a real fundamental question of our national security.”
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