Sun Sentinel Palm Beach Edition
Justice Dept. could face Mueller probe dilemma
WASHINGTON — Just over a year after special counsel Robert Mueller began investigating meddling by Russians in the 2016 presidential election, and what the Trump campaign did or didn’t do, there remains the question of how much the nation will learn about the investigation’s findings.
Deputy Attorney General Rod Rosenstein may end up wrestling with a dilemma similar to the one that tripped up fired FBI Director James Comey: how much to reveal about Trump’s actions in the event the president is not indicted. Rosenstein, who lambasted Comey for disclosing negative information about Hillary Clinton despite not recommending her for prosecution, may himself have to balance the extraordinary public interest in the investigation against his admonition that investigators should not discuss allegations against people they don’t prosecute.
The quandary underscores how there’s no easy or obvious end game for the investigation, which last month reached the oneyear mark.
Though Mueller is expected to report his findings to Rosenstein, there’s no requirement that those conclusions be made public.
And whatever he decides will unfold against the backdrop of a Justice Department inspector general report that reaffirmed department protocol against making public statements about people who aren’t charged.
“Those are going to be the hard questions at the end of Mueller’s investigation: What is the nature of that report, and which if any parts are provided to Congress and the public,” said Georgetown law professor Marty Lederman, a former official in the Justice Department’s Office of Legal Counsel. “There’s just no way for us to know what if any parts of those reports can be made public or should be made public or will be made public.”
The investigation has hit a critical phase. A forthcoming decision by Trump and his lawyers on whether to sit for an interview with Mueller, who is examining whether the president sought to obstruct justice, could hasten the conclusion of the investigation with regard to the White House. What happens next is unclear, though Mueller has been closely conferring along the way with Rosenstein, the No. 2 Justice Department official who appointed him special counsel.
If he decides a crime was committed, it’s theoretically possible he could seek a grand jury indictment, though that outcome is seen as questionable given a Justice Department legal opinion against charging a sitting president. Trump’s lawyers say Mueller’s team has indicated that it plans to follow that guidance.
Depending on his findings, he also could seek to name Trump as an unindicted co-conspirator in a case against other defendants, an aggressive step taken by the special prosecutor who investigated President Richard Nixon.
The regulations require Mueller to report his findings confidentially to Rosenstein, who would then decide how and whether to share with Congress. Lawmakers and the public would almost certainly demand access to that report, no matter the conclusion; a determination of wrongdoing would presumably be forwarded to Congress to begin impeachment proceedings, while a finding that no crime was committed would be publicly trumpeted by Republicans as vindication of the president.
Spokespersons for Mueller and the Justice Department declined to comment on the options under consideration.
The easiest avenue for public disclosure in any criminal investigation is an indictment in which prosecutors lay out their allegations. But options are much trickier when cases close without prosecution.
Comey held an extraordinary news conference in which he said Clinton did have classified information on her private email server and branded her and her aides as “extremely careless.” But he concluded by recommending against charges.
Regardless of the conclusion, the public clamor for a full accounting may make it impossible for Mueller to wind up his investigation with only minimal comment, said Bill Jeffress, attorney for Lewis “Scooter” Libby, who faced charges of leaking a CIA officer’s identity in 2003.
“If that conclusion is simply Mueller announcing, ‘I’ve wound up my investigation and haven’t indicted anyone else,’ nobody’s going to be satisfied with that.”