|SARAH SILBIGER / THE NEW YORK TIMES|
The first thing you need to know about the growing imbroglio over whether Robert Mueller's final report on his Russian scandal findings will be made public is that it's all Ken Starr's fault.
Starr's partisan overreach as independent counsel during the Bill Clinton presidency as he hip-hopped from investigating the suicide of Vince Foster to the Whitewater non-scandal to a certain semen-stained dress -- was so great that the law under which he was appointed was allowed to expire. The Justice Department regulation subsequently enacted in 1999, written in part to prevent similar future abuses, give a special counsel like Mueller day-to-day independence to investigate high-level executive-branch wrongdoing, but ultimately under the supervision of the attorney general.
Under the regulation, Mueller would give the attorney general "a confidential report" when he has finished his investigation explaining his decisions about whom to prosecute and whom not to charge. The attorney general, in turn, must send a report to Congress explaining why the work has concluded. The attorney general is also free to decide whether issuing that report would be "in the public interest."
This is giving about-to-be-confirmed Attorney General William Barr a discomforting amount of wiggle room to bury a report that is likely to lay out the multiple crimes of a Russian asset by the name of Donald Trump. Which is ironic but not surprisingly given the underlying perverseness of the pushback by Trump and Vichy Republicans in Congress against the scandal.
Mueller, of course, is the non-Starr.
The voluble Starr spent four and a half years on what was largely a fool's errand that in the end resulted in Clinton being impeached but not convicted. His wanderings cost $80 million, far eclipsing the $47.4 million spent by Independent Counsel Lawrence Walsh on his eight-year investigation of the Iran-Contra scandal. The scrupulously non-partisan and tight-lipped Mueller has spent nearly $30 million over 20 months, most if not all of which will be recouped in property forfeitures. His team has delivered three sentencings, one conviction at trial, seven guilty pleas and charges against 36 people and business entities -- 28 of them Russians -- with a total of 192 criminal counts in prosecuting the greatest scandal since the Soviet Union stole atomic bomb secrets in the late 1940s.
The regulations under which Mueller was appointed following Trump's defenestration of FBI Director James Comey do not require the Justice Department to release a report. Barr said this week at his confirmation hearing that he wanted to release as much of what Mueller found as possible before descending into a mush-mouthed series of equivocations that left the impression that a release was far from guaranteed.
Starr's final report, encyclopedic in length and content, was made public. Which is kind of beside the point since Trump nominated Barr because he believes that he, unlike his predecessor, will be slavishly loyal and not go and recuse himself as did that Jeff Sessions.
The imbroglio over whether Mueller's report should be made public is immediate and immense.
We're obviously in the scandal endgame, or alternately the beginning of the end. Trump is hugely vulnerable, and on Wednesday night his personal lawyer, Rudy Giuliani, parked his clown car long enough to do some major goalpost moving in acknowledging to CNN's Chris Cuomo that there indeed was collusion between the Trump campaign and Russia despite the Don's repeated denials. This was an admission that the White House may be retreating from its one-size-fits-all "witch hunt" posture and preparing a last-ditch defense.
Meanwhile, the laws of political gravity are finally catching up to Trump as his support in Congress over Russia begins to fracture amidst the longest government shutdown in history slouches toward a fourth week.
In a rebuke to the president, 136 Republicans joined House Democrats on Thursday to oppose a Treasury Department plan to lift sanctions against three companies controlled Oleg Deripaska, a close ally of Vladimir Putin. The overwhelming 362 to 53 vote will not prevent the easing of sanctions because Senate Republicans, minus 11 defections, narrowly blocked a similar measure on Wednesday.
Even if Barr ends up sending to Congress a redacted version of Mueller's report or instead writes his own, it is a given that he would withhold classified information that could reveal intelligence sources and methods still being used to spy on the Russian government.
But that leaves an awful lot that should not be kept secret, possibly including grand jury testimony, but it is my view that if Barr digs in his heels the report or some semblance of it will still see the light of day.
The gist of the report could, of course, be leaked to the news media. The House Judiciary Committee, now controlled by Democrats, could subpoena the report or petition a judge to release it, although Trump's lawyers are likely to assert executive privilege to avoid turning it over.
Then there is the so-called Watergate Road Map.
This is the just-released, long-secret 1974 grand jury report that Leon Jaworski, a circumspect special prosecutor in the Mueller mold from a time that now seems so far away, drafted for the House Judiciary Committee. It laid out in devastating detail Richard Nixon's sins of commission (ordering the Watergate burglary and orchestrating the subsequent cover-up) and omission (refusing to turn over subpoenaed tapes of secret conversations with the co-conspirators) that was rich in by-the-legal-book detail without jumping to conclusions.
In 1974, the House Judiciary Committee decided to not make public Jaworski's grand jury report because things were moving along nicely. Nixon soon avoided impeachment by resigning.
While it is true that the legal framework that gave Jaworski authority to draft his ace-in-the-hole report no longer exists and the regulations delineating Mueller's office and his mandate are more restrictive, a report from Mueller as unpretentious as the Watergate Road Map could be conveyed to the 2019 House Judiciary Committee.
There is also Mueller's use of what, in legal parlance, is known as speaking indictments.
While Mueller has been redaction happy in many court filings, including the substantially blacked-out filing this week laying out the reasons that former Trump campaign chairman Paul "Ostrich Feathers" Manafort should spend the rest of his sorry life in prison, in general his indictments have provided more detail than is required by law. In other words, they speak to us, providing intimate glimpses of the breadth and depth of his findings.
Still, we expect a big government report after big stuff happens, be it the Japanese attack on Pearl Harbor, the JFK assassination, space shuttle Challenger disaster or 9/11 attacks. That a report on a horror of the Russia scandal's magnitude would be buried is unforgivable and, like I said, inconceivable.
Let's hope I'm right.
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