Mueller report: calm before the storm

Robert Mueller’s formal delivery of his investigative report is more prologue than climax. Now that the report is in Attorney General William Barr’s hands, the real action begins.

The special counsel regulations require that Mueller file with the attorney general “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” This provision gives Mueller broad discretion. Mueller has been taciturn in his public statements so far, but his court filings have contained extensive detail. If Mueller follows his own prior practice, then his final report should tell a compelling and detailed narrative in the model of indictments to date.

This brings us to Barr’s involvement in the reports, namely, whether or not he will show it to the White House in advance, and whether or not the White House will hide or alter it. The special counsel regulations are silent on Barr’s obligation or ability to send a draft of Mueller’s report to the White House before he lets Congress or the public see it. This decision will lie entirely at Barr’s discretion. White House attorneys have made clear that they expect to see the report in advance so they can consider exerting executive privilege. President Donald Trump’s personal counsel, Rudy Giuliani also stated that he expects to see it in advance: “We reserved executive privilege.”

Executive privilege generally applies to communications between the President and his advisers. For example: Trump’s conversation with his advisers about firing FBI Director James Comey; Trump’s discussions with Don McGahn and others about potentially firing Mueller; and the President’s interactions with Hope Hicks and others about the June 2016 Trump Tower meeting, where Manafort, Donald Trump Jr. and Jared Kushner met with Russians who had offered dirt on Hillary Clinton. Inclusion of these communications in the report—which could form the core of an obstruction case— will ultimately depend on executive privilege. 

If Trump does assert executive privilege, will anybody object? Will Barr agree with the executive privilege claims and simply omit or redact any disputed materials from Mueller’s report? Or will Barr push back if he believes Trump has asserted executive privilege too broadly?

If Barr resists, then we could end up before the courts. But if he simply accepts Trump’s assertion of executive privilege, expect House Democrats to challenge it. One way or another, any executive privilege claim by Trump seems likely to end up in court.
Mueller’s passage of his report to Barr is a major milestone, but it is only the calm before the storm. 

Featured Image— Robert Mueller finds no Trump-Russia conspiracy Photo Courtesy of NBC News