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Mueller Report: What We Can Learn From Barr’s Initial Letter to Congressional Leaders

The probe is over, Trump won’t be indicted, and other key takeaways.
March 23, 2019
Mueller Report: What We Can Learn From Barr’s Initial Letter to Congressional Leaders
U.S. Attorney General William Barr departs his home March 23, 2019 in McLean, Virginia. (Photo by Win McNamee/Getty Images)

Last night, the long-awaited handoff of the so-called “Mueller report” from Special Counsel Robert Mueller to Attorney General William Barr finally occurred. The event was accompanied by a letter from Barr to House and Senate Judiciary Committee leaders, including Lindsey Graham, Dianne Feinstein, Jerry Nadler, and Doug Collins. The letter itself contains no facts or substantive information—nothing about what Mueller did or did not find with respect to his investigative mandate from Deputy Attorney General Rod Rosenstein.

But it is telling on a number of fronts.

First off, let’s keep in mind what the Rosenstein mandate provides: that Muller “is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey . . . including any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and any matters that arose or may arise directly from the investigation.”  

Note that this mandate is not to investigate Donald J. Trump himself. The tired “witch hunt” refrain must accordingly be retired—and for good. Every American should care enough about our democracy to be curious about what Mueller found regarding the Russian attack on our presidential electoral process.

What we do know is that the investigation uncovered numerous “individuals associated with the campaign of President Donald Trump” who have been indicted, convicted, pleaded guilty, and/or are headed to jail—including most prominently Trump’s campaign chair, Paul Manafort.

So Mueller did his job.

Washington is (understandably) nonetheless abuzz over next steps, wondering whether and when the contents of the report will be made public. Here are four takeaways from the tea leaves of Barr’s March 22, 2019 letter in this regard:

1) The Mueller probe is over. Under the regulations, Barr must tell Congress when the Mueller probe is over. He did this definitively Friday, which is why it comes as no surprise that no more indictments are expected from the special counsel himself. That arm of DoJ is closing up shop. The rest of DoJ—including, of course, the Southern District of New York, which has been busy investigating its own Trump-related “to do” list—is still going strong.

2) Mueller did not even attempt to indict President Trump. We know this because, under the special counsel regulations, Barr is also required to provide Congress with “a description and explanation of instances (if any) in which the Attorney General” or acting 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.” Internal DoJ guidance from the Clinton years frowns on indictment of a sitting president, so if Mueller sought to do that, Barr would have been required to tell Congress as much in the March 22 letter. Instead, he wrote that “[t]here were no such instances during the Special Counsel’s investigation.”

3) Barr already promised to make public more information than the regulations require. The regulations require that Mueller provide a “confidential” report to Barr “explaining the prosecution or declination” decisions he reached. The rules don’t make Barr do anything with that report.

Translated, Mueller must explain to Barr why he indicted 34 people and three companies—including a bunch of Russians—and reciprocally, why he decided not to prosecute certain individuals or companies. The latter list could include Donald Trump himself, or his son Donald J. Trump Jr.—who participated in the famous June 2016 Trump Tower meeting to exchange “dirt” on his father’s political rival, Hillary Clinton. He also told Congress that he “wasn’t involved” in his dad’s efforts to finalize a deal to build a Trump property in Moscow—testimony that conflicts with that of former Trump attorney Michael Cohen, who led the Moscow effort.

Also potentially on the “decline-to-prosecute” list is Trump’s son-in-law Jared Kushner. Kushner was present at the meeting in Trump Tower New York too, in addition to having met with Russian Ambassador Sergey Kislyak to discuss a back channel line of communication from the White House to Putin’s team during the presidential transition.

What the report says about those guys is something that Congress and the public might want to know. Yet all of this explanation by Mueller is technically for Barr’s-eyes-only. The regulations don’t require that Barr tell Congress or the public anything that’s in the report.

Still, Barr goes on to inform the letter’s recipients in Congress—hedgingly—that he “may be in a position to advise you of the Special Counsel’s principal decisions as soon as this weekend.” Thus, Congress will likely get the highlights of Mueller’s report—whatever those entail—which Democrats will likely make public.

4) Barr, Rosenstein and Mueller will together decide what else from the confidential Mueller report—if anything—will be released to Congress and the public. Barr vows to make that determination “consistent with the law . . . and the Department’s long-standing practices and policies.”

Rosenstein has already stated publicly that “[i]f we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.” What this suggests is that, in addition to things like grand jury material and redactions to protect national security information, DoJ’s dream team might well decide that nothing else goes public to the extent that it could either incriminate—or exonerate—individuals whom the special counsel decided not to indict.

As Comey himself recently explained in a piece for the Washington Post, there’s ample precedent for greater transparency based on the extraordinary public interest in Mueller’s detailed findings. But at the end of the day, what Congress and the public gets to know might end up being resolved not by Trump appointees Barr and Rosenstein—but by a federal court. Perhaps that’s as it should be.

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.