1. What will Mueller say?
At the other end, he could write a detailed narrative reminiscent of — though surely not as prurient as — Ken Starr’s 1998 report, which ran more than 400 pages and included potential legal grounds for impeachment of President Bill Clinton, including obstruction of justice.
Mueller has been taciturn in his public statements so far, but his court filings have contained extensive detail. If Mueller follows his own prior practice, then his final report should tell a compelling and detailed narrative in the model of indictments to date.
2. Will Barr show it to the White House in advance? Will the White House hide or alter it?
The special counsel regulations are silent on Barr’s obligation or ability to send a draft of Mueller’s report to the White House before he lets Congress or the public see it. This decision will lie entirely in Barr’s discretion.
If Trump does assert executive privilege, will anybody object? Will Barr agree with the executive privilege claims and simply omit or redact any disputed materials from Mueller’s report? Or will Barr push back if he believes Trump has asserted executive privilege too broadly?
If Barr resists, then we could end up before the courts. But if he simply accepts Trump’s assertion of executive privilege, expect House Democrats — led by Adam Schiff, Elijah Cummings and Jerrold Nadler — to challenge it. One way or another, any executive privilege claim by Trump seems likely to end up in court.
3. What if the executive privilege dispute goes to the courts?
The Nixon case seems on-point here. There is no meaningful legal distinction. Sure, the Nixon case involved tape-recorded communications, and any claim for Trump executive privilege might instead apply to e-mails or memos or spoken conversations, but that’s a distinction that should have no legal relevance.
4. What will Barr give Congress and the public?
Barr has two primary obligations under the special counsel regulations. First, he must provide to Congress (specifically the chair and ranking member of the Senate and House judiciary committees) a description of any instance where the attorney general disagreed with and overruled Mueller. This is where we could learn if Mueller wanted to serve any subpoenas — including on Trump — or bring criminal charges that Barr (or Whitaker or former Attorney General Jeff Sessions before him) overruled.
Second, the regulations permit Barr to disclose, well, pretty much anything he thinks appropriate: “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” So Barr may — not must, but may — disclose anything he determines to be “in the public interest,” an almost limitless standard.
5. What happens if Barr provides little or nothing to Congress?
A congressional subpoena to the executive branch would spark a separation of powers showdown for the ages, pitting the core oversight function of the legislative branch against the investigative imperative of the executive branch. Such a dispute, like a fight over executive privilege, likely would go directly to the Supreme Court, and the outcome could turn on the judicial and ideological worldviews of the justices.
6. What happens to Mueller’s pending cases and investigations?
Mueller’s work will not suddenly end once he issues the report. Mueller’s investigation still has important unfinished business. Former national security adviser Michael Flynn awaits sentencing, and former Trump campaign official Rick Gates continues to cooperate and has not yet been sentenced. Stone, the longtime Trump adviser, faces trial in November.
If anything, look for the scope and intensity of investigations of the President, his administration and his business to intensify — in Congress and particularly in the Southern District of New York.
In many ways, the latter poses a more serious threat to Trump than Mueller does. While Mueller is limited by his appointment to investigating coordination between Russia and the Trump campaign (and matters that “arise directly” from the same), the Southern District of New York has no substantive constraints and can go wherever the evidence leads.
It also is not subject to the special counsel regulations, which require attorney general approval for major prosecutorial decisions.
Mueller’s passage of his report to Barr is a major milestone. But it is the calm; the storm lies ahead.
This commentary has been updated on the news that the Mueller report has been delivered to the attorney general.
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