The drum roll for Special Prosecutor Robert Mueller’s final report is finally complete.
For a long time, Attorney General Bill Barr has been saying he might not release the whole report to the public. So tthe House of Representatives passed a resolution, by a resounding vote of 420-0, calling for its release. President Trump indicated he didn’t mind if Mueller’s report was made public.
But there’s more to Mueller’s job description than just the “comprehensive report” he submitted to Barr on March 22. Marty Lederman, former Justice Department official turned Lawfare blogger, points to a second report that Mueller is obliged to compile that may actually prove more consequential, at least in the context of impeachment.
Mueller’s first report will be on his criminal investigation. His second report will concern the counterintelligence investigation of Trump officials that preceded and prompted the criminal investigation.
The other Mueller report, Lederman says, is
the briefing that DOJ must provide to the congressional intelligence committees conveying the results of the counterintelligence investigation Mueller has superintended. In order to comply with the requirement of keeping those committees “fully and currently informed” of the results of the investigation, that briefing—which will probably include at least some written document—should include Mueller’s assessment, if any, about whether, how and to what extent Trump is compromised or is otherwise unable to perform his constitutional duties on behalf of the nation when it comes to the Russian threat to our electoral system.
The key questions of the Trump-Russia affair will be addressed in this counterintelligence briefing.
Does Trump have financial obligations to Russian interests? Was he — and does he continue to be —motivated by the prospects of a Moscow Trump Tower? Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence? Or is there a more benign explanation for Trump’s otherwise inexplicable conduct regarding Russia and Putin?
The counterintelligence investigation’s answers to these and similar questions — especially its assessment, if any, of the President’s current capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s conduct in 2016-2017 violated any particular criminal statutes.
Lederman notes the independent counsel statute requires Mueller to keep the House and Senate intelligence committees “fully and currently” informed on the counterintelligence aspects of his work.
He also notes a huge problem. The government is usually loathe to disclose the results of counterintelligence investigations for fear of disclosing surveillance methods. The government is also loathe to expose its own mistakes, or abuses of power. So Mueller’s counterintelligence findings may not see the light of day.
it will primarily be the responsibility of the chairs of the committees — Richard Burr (R-N.C.) in the Senate and Adam B. Schiff (D-Calif.) in the House — to assess how much of the information they can and should share with the rest of Congress and the public.
Secrecy around the Mueller’s counterintelligence report would be a recipe for suspicion and a favor to the president.
See: The Formation of Robert Mueller’s Mind.
