Wednesday, February 27, 2019

The Road Ahead

It appears we won't be learning too much more about the Russia Hoax--at least nothing earth shaking--unless or until declassification begins in earnest. The fact of the matter is, any documentary information that would add significantly to our knowledge is almost certainly contained in FBI files. However, given the trajectory of events going forward, the wisdom of Trump's decision to delay declassification seems evident. Here's what I think that trajectory holds for us, tentatively. Declassification is always the wildcard, so we can only guess as to how that will play out and when.

The first thing coming up, of course, is the Mueller report. Since Mueller reports to the AG, Bill Barr, there are a number of issues that arise in that regard. First of all, lets be clear what the regulations governing a Special Counsel say.

Regarding a special counsels final report, we read,

At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. 600.8(c)

What's notable hear is that the the nature of the report is quite circumscribed and flows from the very nature of any Special Counsel investigation. As 600.1 makes clear, Special Counsels engage in criminal investigations, and thus their reports naturally conform to what you would expect from a prosecutor--with some specific details that are worth noting:

  • First, the report is to be made to the Attorney General--not to Congress or anybody else;
  • Second, the report is "confidential", and thus the Attorney General is the one who makes any decisions regarding dissemination or release of the report;
  • Third, the purpose of the report is to explain "prosecution or declination [of prosecution] decisions."

That third point is important. Note that the report is envisioned as being written from a prosecutorial standpoint. It is not envisioned as a "narrative," of the type we have grown used to from Mueller's indictments--in which broad allegations without any offer of proof are made.

A narrative style report is, of course, exactly what Democrats want--and what they want publicly released--because what they're looking for is a road map to impeachment. They know as well as anyone that the failure of Mueller's indictments and sentencing memos, despite their broad narratival style, to offer anything that touches on Trump means that there's little chance that anything prosecutable has been discovered. Thus, they're looking for anything to throw against the impeachment wall that might stick--for the purposes of influencing public opinion. But that's not what the regulations envision. The regulations envision--actually, specify--a narrower type of document.

So, our first question must be: What can Barr do if he receives a report that conforms to what Democrats want--a report that is broadly narratival and goes beyond "prosecution or declination decisions" to offer innuendo, speculation on novel legal theories, etc.?

The regulations (600.9) require the AG to "notify" the ranking members of the House and Senate judiciary committees, and set out the circumstances in which the AG is to make such notification. The first thing to note is that, while Congress is to be notified of the conclusion of the investigation, given the "confidential" nature of the SC report the AG is not required to make any report to Congress on the actual contents of the SC report--although there is one provision worth commenting on. Here are the relevant provisions:

(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, ... 
(3) Upon conclusion of the Special Counsels investigation, including, ... a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued. 
(c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

Beyond the requirement that the AG notify Congress regarding "a proposed action by a Special Counsel [that] was ... inappropriate or unwarranted under established Departmental practices," we note that it is the AG, and the AG alone, who will determine whether the SC report should be publicly released. Further, that determination must take into account "applicable legal restrictions," and releases of information by anyone else in DoJ "shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law." I take it that that last restriction applies to the SC and anyone in his office. Once again, the AG is in charge. (The reasons for these restrictions were covered in Can Barr Simply Release Mueller's Report?)

In light of these provisions, there may be at least three possible courses of action for Barr if faced with a "narratival" report--the first of which has not, to my knowledge, been considered previously.

First, it seems to me to be at least possible that Barr could direct Mueller to redraft a "narratival" report so that it adheres to the form laid out in the regulations. In other words, Barr could direct that the report be redrafted to "explain[] the prosecution or declination decisions", and drop pointless speculation. This may be particularly relevant if Mueller presents speculation regarding some novel theory of obstruction that Barr finds legally insupportable--he could direct Mueller to include only legal theories that are supported by the DoJ's own positions, typically as set out by the Office of Legal Counsel. Note, however, that this probably would not involve a "proposed action" by Mueller, so a notification under 600.9(a)(3) might not be required. I point this out, however, because Barr has already made known his strongly held views regarding the direction in which Mueller appeared to be headed with regard to obstruction--and Barr's views appear to be legally sound in both DoJ policy and SCOTUS precedent.

Second, in the event that Mueller should insist on including broad ranging speculation in his report, Barr might simply decline to release much if anything of the report. I wrote about this previously, citing the views of Jack Goldsmith, who is one of the acknowledged experts in this field:

So let us assume that Mueller sends Barr a very lengthy report. At that point, the regulations require Barr to tell Congress or the public very little about the report.
Section 600.9(a)(3) requires Barr to notify Congress about the completion of Mueller’s work and to explain any instances in which Barr concluded that a “proposed action” by Mueller “should not be pursued.” If Barr does not second-guess an action Mueller wants to take, then Barr’s only reporting duty is to tell Congress that Mueller’s work is done. And even if Barr does check an action proposed by Mueller, Barr is supposed to give Congress only a very brief explanation why. As the Justice Department stated in the Federal Register document that accompanied for the regulations: The reports to Congress contemplated by subsection (a) “will be brief notifications, with an outline of the actions and the reasons for them” (emphasis added).

I would simply add that I have great difficulty, in light of all we've learned, imagining Mueller having much to say about the "counterintelligence implications" (Goldsmith's speculation) of anything Trump did. In any event, such speculation would appear to lie entirely outside his authorization and to be entirely inappropriate under the regulations--which speak only of "criminal investigation". I see speculation on theories of prosecution, which are ultimately rejected, as being far more likely.

The final, and probably most likely, action that Barr might take would be to simply summarize Mueller's report from his (Barr's) own point of view, disregarding tendentious speculation in favor of hewing closely to the regulatory language and "established Departmental practices" regarding "prosecutorial or declination decisions." The reason I see this as the most probable action is that Barr--probably for good reason--has indicated, without making any commitment, that he favors releasing as much as is in his opinion possible or desirable. However, his views on desirability are very unlikely to conform to those of the Democrats.

None of this will prove satisfying to the House. In fact Adam Schiff is already openly talking about subpoenaing Mueller's report if Barr doesn't release it as is. I suspect that Barr is utterly unfazed by such talk, and that any attempt to subpoena the report under the color of Congressional "oversight" would lead to the mother of all legal battles between DoJ and Congress. I also suspect that Barr is fairly confident of ultimate victory, given that the regulations appear to be on his side. That would leave Congress with their witchhunt into Trump's finances. Here again, however, the way forward for the Democrats is not smooth, as I discussed in Bill Barr, Trump's Tax Records, And The Impeachment Fishing Expedition. Such a fishing expedition will almost certainly lead to legal disputes that Barr will no doubt be happy to litigate--at great length.

And that could leave the Democrats with the a very long slog in their fight to get public opinion for impeachment on their side. I expect little to come of the initial phase of that slog--today's Michael Cohen testimony. The hard fact is that if Michael Cohen actually had real "dirt" on Trump, beyond personal anecdotes, Michael Cohen would not be headed to prison--he'd be receiving star witness treatment from Team Mueller. As it is, I expect a public whose opinion of Trump only went up during the "shutdown" to be unimpressed by a convicted liar's promise that, this time, ya gotta believe him. (And this just in--even CNN is saying that Cohen lied again.) In the meantime ...

Infanticide is the big Democrat issue, followed closely by socialism, political correctness, and sanctuary for cop killers. All this while Trump conducts a productive foreign policy, grows employment and income, and fulfills his campaign promises regarding federal regulatory policies and, especially, court appointments that are leading to ever more sensible decisions.

Sundance at Conservative Treehouse has a new conspiracy theory, in which Mitch McConnell will conspire with Nancy Pelosi on impeachment in order to oust Trump through a primary challenge. I'm sure McConnell has policy differences with Trump, but McConnell is all about winning and, in light of the above, I doubt that he has got tired of winning yet.


  1. The real purpose of the insane theatrics arising out of the House Democrat investigations (and any latent carryover from the Mueller witch hunt) is to intimidate Barr into refraining from any investigation or prosecution of the coup conspirators (or any other prior criminality by the Clintons). Should Barr attempt to do so, they will shriek that any such prosecution is purely driven by political revenge, and then use this canard to enrage and rally their base for the 2020 election cycle. It's a weak hand, but it's all they've got.

    1. Yes, quite possibly. I like the point. But Barr is very unlikely to be intimidated. He's been doing litigation all his adult life and will only feed off it. Which is why he stated that in his testimony that he wouldn't be intimidated or bullied by anyone. He wasn't really talking about Trump--if you look at his previous career in DoJ and the way he gave Dem senators the brushoff, you KNOW he's talking about Congress.