Deputy Attorney General Rod Rosenstein may end up wrestling with a dilemma similar to the one that tripped up fired FBI director James Comey: how much to reveal about Trump’s actions absent an indictment against the president. Rosenstein, who lambasted Comey for disclosing derogatory information about Hillary Clinton despite not recommending her for prosecution, may himself have to balance the extraordinary public interest in the investigation against his admonition that investigators should not discuss allegations against people they don’t prosecute.
The quandary underscores how there’s no easy or obvious end game for the investigation, which last month reached its one-year anniversary. Though Mueller is expected to report his findings to Rosenstein, there’s no requirement that those conclusions be made public. And whatever he decides will unfold against the backdrop of a Justice Department watchdog report that reaffirmed department protocol against making detailed public statements about people who aren’t charged.
“Those are going to be the hard questions at the end of Mueller’s investigation: what is the nature of that report, and which if any parts are provided to Congress and the public,” said Georgetown law professor Marty Lederman, a former official in the Justice Department’s Office of Legal Counsel. “There’s just no way for us to know what if any parts of those reports can be made public or should be made public or will be made public.”
The investigation has hit a critical phase. A forthcoming decision by Trump and his lawyers on whether to sit for an interview with Mueller, who is examining whether the president sought to obstruct justice, could hasten the conclusion of the investigation with regard to the White House.
What happens next is unclear, though Mueller has been closely conferring along the way with Rosenstein, the No. 2 Justice Department official who appointed him special counsel.
If he decides a crime was committed, it’s theoretically possible he could seek a grand jury indictment, though that outcome is seen as highly questionable given a Justice Department legal opinion against charging a sitting president. Trump’s lawyers say Mueller’s team has indicated that it plans to follow that guidance. Depending on his findings, he also could seek to name Trump as an unindicted co-conspirator in a case against other defendants, an aggressive step taken by the special prosecutor who investigated President Richard Nixon.
The regulations mandate that Mueller report his findings confidentially to Rosenstein, who would then decide how and what to share with Congress.
Lawmakers and the public would almost certainly demand access to that report, no matter the conclusion; a determination of wrongdoing would presumably be used by to begin impeachment proceedings, while a finding that no crime was committed would publicly trumpeted by Republicans as vindication of the president.
Spokespeople for Mueller and the Justice Department declined to comment on the options under consideration.
The easiest avenue for public disclosure in any criminal investigation is an indictment in which prosecutors lay out their allegations. But options are much trickier when cases close without prosecution.
In Clinton’s case, Comey held an extraordinary news conference in which he said Clinton did indeed mishandle classified information on her private email server and branded her and her aides as “extremely careless.” But he concluded his remarks by recommending against charges, saying no reasonable prosecutor would bring a case.
That decision was condemned last May by Rosenstein, who said “we do not hold press conferences to release derogatory information about the subject of a declined criminal investigation.”
Inspector General Michael Horowitz echoed that criticism in a recent report that accused Comey of breaking from protocol. Comey’s successor, Christopher Wray, further rebuked Comey at a congressional hearing last week, saying, “I think the policies the department has governing commenting publicly about uncharged conduct are there for good reason.”
Solomon Wisenberg, the deputy independent counsel in the 1990s investigation involving President Bill Clinton, said he struggled to envision Rosenstein making public the extent of Mueller’s findings if there’s no indictment “because it would be completely inconsistent with the criticism of Comey _ and it wouldn’t be right. It wouldn’t be the right thing to do.”
“It’s long been considered unethical to not charge someone but smear them,” he said.
Lederman, however, said he thought it made sense to publicly release what investigators found about Russian meddling in the 2016 presidential election, especially if it could be relevant to helping combat the problem in the future.
“I don’t think there’s a problem to the extent the report would be less focused on what Trump did wrong in the past and is focused on his ability or willingness to deal with the Russia threat in the future,” he said.
As the investigation inches toward resolution, there’s not much reliable precedent to predict the outcome here.
Independent counsel Ken Starr issued a public report on Bill Clinton, but his appointment came under a different law. A special counsel investigation into the 2003 leak of a CIA officer’s identity resulted in criminal charges against a Bush administration White House official, I. Lewis “Scooter” Libby,” but produced no public report summarizing all the findings of probe.
Regardless of the conclusion, the public clamor for a full accounting may make it impossible for Mueller to wind down his investigation with only minimal comment, said Bill Jeffress, one of Libby’s lawyers.
“If that conclusion is simply Mueller announcing, `I’ve wound up my investigation and haven’t indicted anyone else,’ nobody’s going to be satisfied with that.”