Court Filings Could Be Telling Public Now What He Cannot Officially Release Later
WASHINGTON, D.C. (Dec. 10, 2018) – Perhaps recent court filings by special counsel Robert Mueller are unusually detailed, with many new incriminating findings, not because these many details are truly necessary to assist the judges before whom they were filed, but rather to provide information to the public which it would not otherwise see if his final report is suppressed, suggests public interest law professor John Banzhaf.
Many observers have noted that the sentencing recommendations just filed by Mueller regarding Michael Flynn and Michael Cohen, plus a related document about Paul Manafort, are far longer and much more detailed than required for their stated purpose, and that they include many new allegations of wrongdoing, if not criminal acts, directly related to the President, says Banzhaf.
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Perhaps a major reason is real concern that Mueller's final report will never be released to Congress, much less to the American public, suggests Banzhaf.
Mueller is reportedly planning to issue his criminal investigative report shortly, but a legal minefield may prevent the public from ever finding out what he uncovered, says Banzhaf, who played a role regarding two former special prosecutors and an independent counsel.
Meanwhile, many politicians and pundits are opining that the public may never know the truth about all the possible wrongdoings by President Donald Trump until they read Mueller's final investigative report, but most don't realize how unlikely the public release of any such report is.
That's because Mueller is bound by current Department of Justice [DoJ] regulations which make any release - much less a release to the public - of such report unlikely.
So Mueller may be going out of his way to include in sentencing recommendations, and in other court filings, as many details of his investigation - which are in some way related to the court filing - in order to be sure that this information does in fact become public, suggests Banzhaf.
Although large portions of these documents - as they have so far been revealed to the media and public - have been redacted, all of this information is now under the control of various federal judges with lifetime appointments, and thus largely beyond the reach of anyone in the administration.
Professor Rebecca Roiphe of New York Law School put it this way: "He's putting the product of his investigation into safe hands. All that redacted material is now with a judge. Once it's with a judge, other officials within the Department of Justice lose the power to destroy it."
As another report explained, "Put simply: Mueller just dispersed some of the findings of his investigation to a couple of federal judges, who now have the power to safeguard, and later reveal, the key parts of the special counsel's work directly to the public, former prosecutors said."
Roiphe also observed that "These plea agreements have been coming in a very unusual sequence, and it's not totally clear why. But one possibility is that Mueller is deliberately entering this information into court right now, in order to preserve it in case Whitaker or someone else later tries to bury it."
Former prosecutor Ilene Jaroslaw agrees, saying that "Mueller's team now has a failsafe. If the judge ever decides there's a legitimate reason to release this information to another prosecutor's office, or to the public, the judge can order that. Nothing the executive branch can do now can take it away."
Another example of using court filings to reveal information which may not be releasable in Mueller's final investigative report are the two "speaking indictments" filed earlier charging several Russians with misconduct related to the 2016 election. The term "speaking indictments" is used to describe charging documents which contain far more information and detail than is customary or required by law, explains Banzhaf.
Indeed, unless the Justice Department changes the regulations to permit the release of any such final report to the public, using court filings may be the only way for Mueller to insure that the information sees the light of day, suggests Banzhaf.
Many people no doubt are expecting that Mueller will release a report upon the conclusion of his investigation, since Kenneth Starr released to the public a lengthy report of evidence allegedly amounting to "substantial and credible information that President William Jefferson Clinton committed acts that may constitute grounds for an impeachment" when he ended his investigation.
But Starr was able to do this because he had been appointed independent counsel under a statute which not only permitted but required that he submit to Congress a report if he found any "evidence which might warrant impeachment."
This phrase, of course, includes a very broad and vaguely defined category of alleged wrongdoings which might not even constitute crimes, much less crimes which could be proven beyond a reasonable doubt in a court of law.
The special statute under which Starr had been appointed has long since expired, and Mueller was appointed special counsel under DoJ regulations which also bind him in his role as special counsel.
These DoJ regulations do not require or even permit a public report from Mueller. Instead, they make it very difficult for any such findings to become public.
The DoJ regulations, specifically Section 600.8, requires the special counsel to provide a "CONFIDENTIAL report explaining the prosecution or declination decisions reached by the Special Counsel," but only to the Attorney General. [emphasis added]
Moreover, if Mueller does find that impeachment should be considered - technically that "other governmental action outside the criminal justice system might be appropriate" - he may "consult [ONLY] with the Attorney General with respect to the appropriate component to take any necessary action."
But it's not clear that whoever finally makes the decision would then release the report, especially since the law doesn't require him to do so, and there is already enormous pressure from the executive branch not to.
In summary, unlike Starr and other independent counsel, if Mueller does have evidence showing that Trump committed crimes or engaged in other activities which might warrant impeachment, he has no easy way to present this information to the Congress, much less to the American people, unless he includes it in a court filing such as a sentencing recommendation or a speaking indictment, suggests Banzhaf.
JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH), 2000 H Street, NW, Wash, DC 20052, USA (202) 994-7229 // (703) 527-8418
http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf