PSA: Don’t Misunderstand the Function of a Mueller Report

About a million people have asked me to weigh in on this story, which relies on unnamed defense attorneys (!! — remember that its author, Darren Samuelson, was among those citing Rudy Giuliani’s FUD in the wake of the Paul Manafort plea) and named former prosecutors, warning that people may be disappointed by the Mueller “report.”

President Donald Trump’s critics have spent the past 17 months anticipating what some expect will be among the most thrilling events of their lives: special counsel Robert Mueller’s final report on Russian 2016 election interference.

They may be in for a disappointment.

That’s the word POLITICO got from defense lawyers working on the Russia probe and more than 15 former government officials with investigation experience spanning Watergate to the 2016 election case. The public, they say, shouldn’t expect a comprehensive and presidency-wrecking account of Kremlin meddling and alleged obstruction of justice by Trump — not to mention an explanation of the myriad subplots that have bedeviled lawmakers, journalists and amateur Mueller sleuths.

Perhaps most unsatisfying: Mueller’s findings may never even see the light of day.

The article then goes on to cite a range of impressive experts, though it quotes zero of the defense attorneys, not even anonymously, except in linking back to Rudy warning that the White House would try to block the public release of any report by invoking executive privilege.

Without having first laid out what Samuelson imagines people expect from the report or even what he himself thinks, the piece’s quotes lay out the assumptions of his sources. “He won’t be a good witness,” says Paul Rosenzweig, suggesting he imagines Congress will invite Mueller to testify about his report to understand more about it. Mary McCord, who knows a bit about the investigation having overseen parts of it when she was still acting NSD head, said “It will probably be detailed because this material is detailed, but I don’t know that it will all be made public,” which seems to suggest it will collect dust at DOJ. Paul McNulty, who worked with Mueller in the Bush Administration, acknowledges that Mueller, “knows there are a lot of questions he needs to address for the sake of trying to satisfy a wide variety of interests and expectations.” All those quotes may be true and still irrelevant to what might happen with the Mueller report.

Later in his piece, Samuelson does lay out his assumptions (this time citing none of his impressive sources). Samuelson posits, for example, that, “it will be up to DOJ leaders to make the politically turbo-charged decision of whether to make Mueller’s report public.” He claims Democrats hope to win a majority and with it “subpoena power to pry as much information as possible from the special counsel’s office.” In those comments, Samuelson betrays his own assumptions, assumptions which may not be correct.

Start with this. Even though Samuelson has covered this investigation closely, he somehow missed the speaking indictments covering Russian actions, to say nothing of the 38 pages of exhibits on how Paul Mananfort runs a campaign accompanying the plea deal of Trump’s former campaign manager. It appears he has missed the signs that Mueller — if he has an opportunity — will not be using his mandated report to do his talking.

He’ll use indictments.

Which is probably something you don’t learn listening to defense attorneys who won’t go on the record. But you might learn if you consider what Patrick Fitzgerald has to say. Like McNulty, Fitz also worked closely with Mueller, not just during the four years he served as special counsel investigating the CIA leak case, but during the almost 11 years when Fitz was US Attorney in Chicago and Mueller was FBI Director. Also, while he’s not a defense attorney in the Mueller case, he is representing a key witness, Jim Comey, in it and had a partner, Greg Craig, investigated by it. Fitz basically says that the Scooter Libby trial revealed “a fair amount about what we did.”

Patrick Fitzgerald, the independent counsel in the Plame investigation, was under no obligation to write a report because of the specific guidelines behind his appointment. Testifying before Congress as his probe was ending, Fitzgerald defended the approach by noting that grand jury witnesses expect secrecy when they testify. He also noted that a 2007 public trial involving I. Lewis “Scooter” Libby, a former top aide to Vice President Dick Cheney convicted for perjury, had revealed much of the investigation’s details.

“I think people learned a fair amount about what we did,” Fitzgerald said. “They didn’t learn everything. But if you’re talking about a public report, that was not provided for, and I actually believe and I’ve said it before, I think that’s appropriate.”

Fitz is right. He revealed a lot in that trial, having fought hard to be able to get much of it cleared by the spooks to be publicly released. He revealed enough that, had the Democratically-controlled Congress seen fit in 2007, they could have conducted investigations into the impropriety of things constitutional officer Dick Cheney did in pushing the release of Valerie Plame’s identity. In a key hearing, Joe Wilson actually pulled any punches directed at Cheney. It is my belief, having been present at some key events in this period, that had a witness instead laid out all the evidence implicating Cheney, Congress may well have taken the evidence Fitz released in the trial and used it to conduct further investigation.

No one will have to make that case about Trump to Democrats in the wake of a Mueller investigation, I imagine.

I’ve got a piece coming out next week that lays out what role I think the vaunted Mueller report really plays, because I think it does play a role, a role that Samuelson doesn’t even consider.

But for now, I’ll point to Fitz comments as a way to say that, even drawing as he does on a great number of experts about how such investigations have worked in the past, Samuelson is not drawing the correct lessons. The first of which is that Mueller would prefer to lay out his “report” in trial exhibits.

As I disclosed July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

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25 replies
  1. Fran of the North says:

    When I read the Politico article early this morning, the first thing through my mind was that it was a puff piece designed to assuage the faithful that all is right with the world. “No need to worry, there is no danger to the kingdom.”

    The ultimate intent is to uplift and get the ‘less-than-rabid’ Repubs on the margin out of deepening depression about the hopelessness of the situation, and off to the polls.

    It appears that the Democrats and Independents on the margins are motivated to pull levers and punch chads. If the GOP doesn’t energize beyond the core of the base, a change is gonna come.

    • skua says:

      “The ultimate intent is to uplift and get the ‘less-than-rabid’ Repubs on the margin out of deepening depression about the hopelessness of the situation, and off to the polls.”

      If I was looking to activate Republican voters I’d be looking to increase their fear and anger. Politico spinning the up-coming output of the OSC as a non-event does not have that effect.

      This is not to say that your understanding of Politico’s intent is incorrect.

      • Fran of the North says:

        I agree that fear and uncertainty are huge motivators for a certain segment of GOP, as we saw with the Kav hearing. Another great example is the GOP’s cynical use of the ‘They only care about impeachment’ argument. That said, I think there are other Republicans who are squeamish – and would rather not actively support a proven con artist.

        However, if the ‘proof’ of the crimes are unlikely to be revealed, then that otherwise recalcitrant voter has justification for shaking off the lethargy and exerting the effort required to vote.

  2. NorskieFlamethrower says:

    Thanx EW, it makes some of us feel better momentarily. But with election terrorism beginning, killing and terrorizing journalists and hollowing out federal law enforcement I can’t be optimistic. This election is gunna determine whether or not the Mueller work ever sees fruition. In a state where the Kochs and the NRA have been subsidizing right-wing nut jobs for a couple of decades, I’m fearful that this may our version of the 1933 election in Germany. Nothing was settled in terms of governing under law and led directly to the consolidation of power in the referendum of 1934.

  3. Drew says:

    Thanks Marcy. I’m looking forward to your piece next week. It has always struck me that there is some role for a Mueller report, despite the fact that he talks mostly through indictments, etc.

  4. earlofhuntingdon says:

    Given how at arms length Mr. Trump has remained from Mr. Mueller’s investigation, it is hard to see how “executive privilege” would come into play.  He might try to prevent him releasing his report to Congress, but that ought to generate a fight.  This looks like a planted story from the minders to a president or the Don himself, addicted as he is to waiving his appendage in the wind.

    An obvious benefit to speaking through his indictments is that they have immediate newsworthiness and hold the potential for longterm costs to those indicted, both of which a redacted report could lack.

    • Mitch Neher says:

      I was under the possibly mistaken impression that the rationale behind executive privilege is to assure that the president gets the best possible advice from executive officers who might withhold that advice if it were subject to a subpoena to testify or to produce documents and the like.

      I’m perfectly willing to confess my naivete. But how could executive privilege be validly asserted to suppress evidence against a president reported by a special counsel? If that’d be valid assertion, then why wouldn’t State secret privilege also be validly asserted for the sake of suppressing Mueller’s final report? Or put that last part the other way around.

      Wait a second. Would executive privilege be asserted only with respect to grand jury testimony or interview statements from White House personnel? But how could executive privilege validly suppress grand jury testimony? I seriously do not get it.

  5. tryggth says:

    Looking forward to the upcoming piece.
    Isn’t Mueller just obligated to report the basis of his go/no-go decisions? And probably just the no-gos since the “gos” are pretty obvious.

  6. orionATL says:

    why am i getting a 404 error when i try to comment?

    FoundSorry, the post you are looking for is not available. Maybe you want to perform a search?

    For best search results, mind the following suggestions:

    Always double check your spelling.
    Try similar keywords, for example: tablet instead of laptop.
    Try using more than one keyword.

    when i put the title of this post in the search block the stupid robot says thisbpost can not be found.

    looks like 404 is being used for security purposes and not as a honest “post not found” message..

    • bmaz says:

      Seriously????

      This is why I penned the “The Reply Button” post.

      You have no idea in the world what we defend against, by the minute, much less the hour. And, yes, sometimes it may impinge on your ability to post a comment temporarily. It is NOT because we choose that, but because we are trying to protect against such intrusions overall. Please understand and do not complain about this. Again, we are not being paid by big monied interests, nor annoying advertising.

      And, at some point, the constant complaining gets really hard to take. If you have more, please bring it directly to me. In the meantime, this gets really old fast.

      • orionATL says:

        skip the snotty rebukes, bmaz. i had hoped you’d gotten over your rudeness to commenters, but i’ve noticed recently it has been creeping back in spades. the “reply button” post made for an interesting discussion of the many platform problems that are encountered and may have made you feel better but all it said, in effect, is “there’s nothing we can do, folks.” in other words, you made the standard national security appartchick’s argument – “we’re under attack; we must do what we must do, trust us.”

        when a commenter takes a lot of time to craft a comment in the “leave a reply” space of a particular post, say an hour, and gets a 404 saying the post he was replying to in that post’s “leave a reply” space can’t be found, that is clearly inaccurate info being given the commenter by the emptywheel website.

        when said commenter then takes the trouble to clears his cache, clear all sites visited, clear all cookies, etc and the resubmits the comment in the same post’s “leave a comment” space and is still told the post can’t be found, that is beyond frustrating – and another inaccurate message to boot. but natsec think allows this behavior, right?

        when said commenter submits a one sentence test , under the same id’s as before, and that one sentence test is accepted, it is clear that the security robot has targeted the initial comment though on what criterion is unclear, maybe just time taken to submit.

        in addition to a courteous statement of regret from you, bmaz, which is the least you might have done, and which would made you have seemed less the whiney marytyr, you might have offered hope this would change.

        for example, you might have offered the possibility a policy of putting questionable comments that took “excess” time to be posted in moderation as is done with other comments, such as those with three or more cites.

        i am confident the emptywheel site can do better with a bit of security imagination.

        • bmaz says:

          Thank you for your continued support.

          Always good to know that our longtime commenters have our back, no matter what, when we have difficulties from external forces and attacks. Thank you, again.

          • orionATL says:

            empathy is catching, bmaz.

            it erases frustration and anger very effectively.

            i understand the security problem extremely well. do you undrrstand my pronlem?

        • Rayne says:

          orionATL, I heartily recommend drafting comments in a notepad-type app and then cutting and pasting into Reply. It will save you a lot of heartburn since not all Reply failures are due to this site’s design issues. If you don’t have a notepad app there are browser-based options like writebox (write-box.appspot.com).

          If it was an easy fix it would have been done already. I really don’t think you realize what other bells and whistles need to be fixed/patched/upgraded here on the regular let alone the security issues to be addressed.

          • orionATL says:

            thanks, rayne.

            this is very helpful. i had decided the obvious solution was to compose off-line. the specific suggestions for convenient apps helps. i have a neat little word processing program that i use a lot for long-form stuff, but i hate to drag it up for emptywheel since i never really know when i’m going to drop off a few lines or go on a long-winded jag. anyhoo, with a dedicated little app, i would have a record of what i had written.

            as for understanding, i have a good deal of general understanding, which, as i mentioned above, was increased by the understanding of the many platform problems a site most deal with. i have no understanding of the programming specifics, except for comments from pinc and a few other clearly-on-top-of-it web designers/programmers who contributed.

            my specific question is why a comment with a name known to the system cannot be handled in the same way that too many cites or too much length are handled- shuunted off to a siderail to be handled later. that it is not suggests that this occurs offsite before it ever gets to emptywheel website. in any event, when this happens my testing suggests the comment is permanently barred from this cite. small loss, i know 😁.

            • bmaz says:

              Your comments are cherished (and, no, I am not kidding). Without going too deep into it, because that would be imprudent, it hard to describe how many bugs occur because of our layers of security features. And it would be hard to describe the insane security we have to employ to stay viable.

              It sucks for us even more than you (and even I have had something time out before). It is a pain. Lawfare is a big time funded operation, and our friends over there have been under massive attack lately. It happens if you are on the cutting edge of things these days. It shouldn’t be, but it is a fact of our kind of blog life, unfortunately.

  7. orionATL says:

    Found
    Sorry, the post you are looking for is not available. Maybe you want to perform a search?

    For best search results, mind the following suggestions:

    Always double check your spelling.Try similar keywords, for example: tablet instead of laptop.Try using more than one keyword.

  8. orionATL says:

    this is not the first time this has happened to me. each time for the apparent same reason –
    i took too long to write it all up. each time i lose comments like this i lose time and thought i put together.

    as best i can tell it happens because i compose entirely “on-screen” and take some time in certain cases checking points i want to make.

    if this is security it is sorry-assed security from a customer standpoint – time spent composing in situ doesn’t ring a bell with malicious activity. or even with bandwidth problems.

  9. oldoilfieldhand says:

    Marcy,
    Thanks for helping clear some of the muddy waters stirred up by presidential scribes and sycophants,
    BMAZ,
    You’re comments are insightful, technically astute, possibly invaluable, on point and your criticisms are usually warranted…However, one should keep always in mind what Thumper’s mother had him recite in Bambi.
    Rayne, not sure how you manage to remain so civil but am always appreciative of your moderation.

    • bmaz says:

      Never trust anything from The Federalist, it is pure shit. Domenech and Davis run a joint that is even more dishonest than Breitbart.

Comments are closed.