The report that special counsel Robert Mueller gave to Attorney General William Barr raises three major questions.
What does the report say?
This is already a victory for President Donald Trump. Once the report was turned over to Attorney General William Barr, it completed Mueller’s work. He is not recommending any new indictments. Thus, there will be no indictment for perjury or obstruction of justice arising out of the infamous Trump Tower meeting attended by members of the Trump family and Russians.
There is a question of how specific and how tough Mueller’s report will be on individuals who are not indicted. My guess is he will not say things like ousted FBI Director James Comey said about Hillary Clinton. Unlike in Comey’s case, it would not be improper for the chief prosecutor on a case to express his opinion. But I don’t think Mueller will be accusatory. He may say that some people, possibly including Trump, exercised poor judgment in situations, but go no further.
What will Barr do with Mueller’s report?
If the report does not accuse anyone of collusion with the Russians, Barr will probably release it soon, redacting only those portions that contain important confidential material. I suspect that Mueller expected Barr to release a report that did not accuse Trump of misconduct, so he wrote it in a manner that lent itself to total release.
Read more commentary:
Robert Mueller report will be a gold mine of improprieties. Trump shouldn’t celebrate yet.
Mueller completes his report. Now let’s see it.
I have felt all along that Barr would be strongly inclined to release whatever Mueller’s report said. The reason is that Barr is a professional whose life has been in the big leagues in New York City. All of these people would want the report released and would be critical of Barr if he didn’t release it. Barr, 68, would not want to make his swan song in public service something that will damage his otherwise excellent reputation. Withholding the report would do that.
There is a lesson in Watergate. After Richard Nixon succeeded in getting special prosecutor Archibald Cox fired following the Saturday Night Massacre in which Attorney General Elliot Richardson and his deputy William Ruckelshaus resigned rather than fire Cox, public opinion forced Nixon to hire a successor. It was the prominent Texas attorney, Leon Jaworski, also 68, who had been president of the American Bar Association. Jaworski was diligent. He was not a Nixon acolyte, just like Barr is not a Trump acolyte. Both were professionals. Jaworski did not take on the difficult job in order to ruin his reputation. Neither did Barr.
Mueller indictments of members of Trump’s family — much less Trump himself — were always a long shot. Mueller appears to lack hard evidence of collusion. If he had substantial evidence, he would have called in Donald Trump Jr. and Jared Kushner for questioning. Russian collusion is a dead end.
But the greatest threat to Trump and his family is from New York, namely, the Manhattan District Attorney, the New York Attorney General and the United States Attorney for the Southern District of New York. They have easier cases than Mueller. These include bribery and election-law violations involving Michael Cohen and Trump’s alleged tryst, where Trump appears to have been an unindicted co-conspirator; a variety of crimes involving the Trump Organization, including evasion of various state taxes and various laws and regulation; misuse of the Trump Foundation; and possibly violations by the inaugural committee, which probably could be prosecuted in both Washington, D.C., and New York.
Adam Schiff: Don’t hide Mueller, FBI findings on Trump. Protect America and rule of law.
If so inclined, the Southern District could issue an indictment in a matter of days on the payoffs to Trump’s women. The Manhattan District Attorney issued an indictment of Paul Manafort within minutes of the completion of his sentencing by Federal Judge Amy Berman Jackson. He’s obviously geared up. The New York attorney general has been working for months on the Trump Foundation, and some misconduct in connection with it is public.
Indictments could be forthcoming starting in a matter of weeks. Trump himself will probably not be among those indicted. The Justice Department has a policy against it on a number of grounds, including that its members work for the president and an indictment would cripple the executive branch of the federal government. New York State does not have a policy, but it does have the problem of the Supremacy Clause, which might be construed to bar a state entity from indicting a sitting president. But I’m making no predictions. New York might try it.
David M. Dorsen, formerly assistant chief counsel of the Senate Watergate Committee and an assistant U.S. Attorney in the Southern District of New York, is the author of “The Unexpected Scalia: A Conservative Justice’s Liberal Opinions” and, most recently, “Moses v. Trump, a contemporary novel.” Follow him on Twitter: @DavidDorsen