The control-F search you should do on the Mueller report

“Junior.” One of Mueller’s biggest unanswered questions: What happened to Trump Jr.? Strangely, Mueller never subpoenaed or even sought to interview Trump Jr. Typically, that means either (1) the individual has no relevant information — hard to imagine given that he attended the June 2016 Trump Tower meeting and was a central player in the campaign, or (2) the individual is a target, meaning a person who is likely to be indicted. Perhaps Trump Jr. was a target but the evidence ended up insufficient to indict. Or maybe Mueller referred Trump Jr. to the Southern District of New York, which carries on with investigations of potential campaign finance violations, the Trump Organization and the Trump inaugural committee.

At the risk of his own credibility, Barr had better not try to obscure Trump Jr.’s conduct through redactions under the rubric of “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Barr testified that he (rightly) does not consider President Trump such a “peripheral third party.” It would be absurd, and transparently political, for him to pigeonhole Trump Jr. into this sanitized category.

“McGahn.” The White House reportedly has “significant concern” about Mueller’s report and “what worries them most is what Don McGahn told” Mueller. The New York Times has reported that McGahn, who served as Trump’s White House counsel, cooperated “extensively” with Mueller and provided “detailed accounts about the episodes at the heart of the inquiry into whether Trump obstructed justice.” McGahn had inner-sanctum access to Trump and likely gave Mueller unique perspective on Trump’s behind-the-scenes machinations. For example, the Times has reported that Trump ordered McGahn to fire Mueller, but McGahn resisted. (Trump denies he gave such orders.) That type of evidence could shed light not only on Trump’s actions but also his potentially obstructive motives and intent.

“Defer.” According to Barr, Mueller declined to make a “traditional prosecutorial judgment” on obstruction. Why? It seems unlikely that Mueller — a career law enforcement professional accustomed to making tough calls — bailed out because he simply could not make up his mind. Rather, we may learn that Mueller intended to defer to somebody else on obstruction for institutional reasons. We know that Barr has declared the evidence insufficient for a criminal obstruction charge. But Barr later admitted in his congressional testimony that Mueller did not ask him to weigh in. The most likely scenario is that Mueller — given Department of Justice policy against indicting a sitting President — intended to defer to Congress, the only entity able to take remedial action against the President for abuse of power.

Now, your questions:

When Trump fired Comey in May 2017, he specifically referenced and relied on a memo prepared by Rosenstein that concluded Comey had inappropriately handled the investigation of Hillary Clinton’s use of a private e-mail server. However, Trump himself stated at other times that he fired Comey because of “this Russia thing with Trump.”

This is a critical question. If Trump fired Comey for the reasons stated by Rosenstein in the memo, then Trump is in the clear on that part of the obstruction inquiry; there’s nothing obstructive about firing an FBI Director for mishandling a case. But if Trump fired Comey to stop the Russia investigation, then serious questions arise about obstruction. At a minimum, Rosenstein would seem to be a crucial fact witness on the obstruction issue: Did Rosenstein write the memo about Comey to give Trump a pretext to fire Comey?

All of which raises the question: Why didn’t Rosenstein recuse himself? Attorneys ordinarily must recuse themselves from a case if they have a conflict of interest, and an attorney who also is a fact witness has a textbook conflict. How can an attorney investigate a case in which he was directly involved as a participant? Neither Rosenstein nor the Justice Department have offered an answer to that key question yet.

The chances of Mueller testifying before Congress directly correlate to the level of public distrust in Barr’s redactions to the report. The more questions raised by Barr’s redactions, the greater the chance Congress calls Mueller to testify.

If Mueller testifies, do not expect fireworks. Mueller’s office apparently did not leak and almost never commented publicly on its work. And Mueller is famously taciturn and by-the-book, so I’d expect him to say as little as possible.

If Mueller does testify, it will not be as simple as Congress asking him to tell all. He almost certainly will not discuss classified information or ongoing investigations that he has referred to other Justice Department offices, for example. Mueller also might follow Barr’s lead and refuse to discuss grand jury materials, which ordinarily are confidential (though Barr has the ability to seek court permission to disclose grand jury materials — which he has stated he will not do).

That said, there are important questions that only Mueller can answer, including (1) why did you decline to make a prosecutorial decision on obstruction, and (2) who did you intend to make that decision — Barr, Congress or somebody else?

When it comes to enforcing a subpoena, Congress isn’t quite toothless, but its teeth aren’t particularly sharp. This piece by Harry Litman provides a detailed overview. In sum, if Barr (or anyone else) defies a congressional subpoena, then Congress has three options, all of which carry drawbacks: (1) declare the offender in contempt of Congress, which is almost entirely symbolic and almost never done; (2) refer a criminal contempt case to the local US Attorney’s Office — which operates under the supervision of Barr, and can easily deny or ignore the request; or (3) file a civil enforcement action under an obscure 1978 ethics law, which says that if the court agrees the subpoena is valid, it can order compliance, backed by its own contempt powers.

Of these options, the third one is the only viable path to obtain a copy of the full report from Mueller. But even if Congress prevails in such a lawsuit, it will take many months to wind through the courts. Unless Barr voluntarily changes his current expansive position on redactions, it will be a long time before the public sees the full Mueller report, if ever.

Congress — particularly the Intelligence Committees — routinely receive and review classified or other sensitive information. Accordingly, House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer have called upon Barr to provide the full report and underlying documentation to Congress.

In his testimony last week, Barr signaled some willingness to give one report that includes sensitive information to selected members of Congress and another redacted version to the public. Barr would be well-advised to make this concession.

That said, Barr has a difficult choice to make here. If he refuses to provide a full version of the report to the congressional intelligence committees, he will be pilloried for hiding classified or other sensitive information from entities that are responsible for handling such information and maintaining its confidentiality. On the other hand, if he does provide the unredacted report to the committees, it could leak, which could endanger ongoing investigations.

Yes. The Attorney General is the head of the Justice Department, and the Southern District is part of the Justice Department. So Barr certainly has the ability to review and direct the Southern District in its Mueller spin-off investigations of potential campaign finance violations, the Trump Organization and the Trump inaugural committee.

The Southern District, however, is famously independent, earning the nickname the “Sovereign District.” I know firsthand from my time there that the Southern District is resistant to Justice Department oversight and views itself as largely beyond the reach of centralized supervision.

The Southern District also operates with more structural independence than Mueller did under the special counsel regulations. For example, the regulations require Mueller to regularly notify the attorney general of the status of the investigation, request annual funding from him, advise him of major investigative steps and file a final report with the attorney general, who then controls whether and how those findings are communicated to Congress and the public.