It would be depressingly ironic if Robert Mueller's highly anticipated report were kept tightly under wraps as a result of James Comey's decision to break long-standing Department of Justice rules in the Hillary Clinton email case. Comey's announcement that Clinton showed "bad judgment," even as the FBI recommended that no criminal charges be brought, has been rightly excoriated for changing the course of history in a deeply destructive fashion. In his confirmation hearings last month, Attorney General William Barr implied several times that he would not make that mistake again -- which may very well redound to the benefit of his boss, Donald Trump.
It's not that Barr is wrong on the merits of that policy. The government has tremendous power to dig into every aspect of a citizen's life, on what are often thin pretexts. If investigators find evidence of a crime, they are tasked with bringing it to court, where it is subject to the judicial process to determine guilt or innocence. If there is not enough evidence to prosecute a crime, investigators are supposed to close the case and move on without comment. If they don't indict, it's not their job to offer their own opinions about whether or not the person's behavior was up to their standards. That's what Comey did and then -- oops, he did it again! -- compounded the error just 10 days before the 2016 election.
One imagines that any federal prosecutor would be especially vigilant about not breaking that rule again, and a partisan attorney general hoping to protect his president from political damage is very likely to see Comey's precedent as a godsend. But it really isn't that simple.
If the reporting is correct that Mueller is preparing to turn over his report to the Department of Justice as early as next week, it's highly unlikely that he will include an indictment of President Trump regardless of the evidence against him. Relying on a 1973 finding from their Office of Legal Counsel (OLC), the DOJ has determined that a sitting president is the one person in the whole country who cannot be indicted. So if Barr strictly adheres to the policy of not publicly discussing any evidence regarding a person who is not indicted, we may learn nothing about what Mueller uncovered about the president. That is a classic Catch-22.
That finding by the OLC, we should note, is not written in stone. Rachel Maddow reported on her show on Thursday night that it was originally conceived as a sort of cover to allow the attorney general at the time to threaten corrupt Vice President Spiro Agnew with indictment in order to force him to resign:
It seems unlikely, however, that Barr will go so far as to change this policy. Considering that Trump has wriggled out of every jam he's ever been in by the skin of his teeth, using an egregious loophole in this case would certainly fit his history. But this is no ordinary case, and that's simply unacceptable.
If we were dealing with the investigations in the Southern District of New York pertaining to Trump's alleged hush money payments or tax fraud or some other ordinary crime, one could make a case for requiring a president to waive the statute of limitations and waiting to prosecute until he or she is out of office. I don't agree with that premise that the president cannot be a criminal suspect, but one might be able to rationalize it as the best way to uphold the concept that no one is above the law while preserving the prerogative of the Congress and the people to determine whether a president should be removed from office.
But this case is unique and the stakes are much higher. Unlike Richard Nixon, who was overwhelmingly corrupt and abused his power for political gain, this president is also suspected of conspiring with a foreign government to sabotage the election in his favor, and then using the power of his office to cover it up while tilting America's policy toward that country as president.
If there is evidence that Trump did this knowingly, he will have betrayed the country and compromised national security. Even if he was an unwitting dupe, so naive and inept that he didn't realize that he was betraying his country, and is so intellectually and psychologically unfit that he can't understand why his subsequent actions were unethical, he is still compromising national security.
None of that is contemplated by the Justice Department policy that says a president can't be indicted, nor of the corollary position that if he is investigated by law enforcement none of the details can be revealed. That is perverse and nonsensical.
The Washington Post's Greg Sargent pointed out in a powerful column on Thursday that the emerging "savvy" hot take that everyone should lower their expectations about this report is just plain wrong. There is absolutely no requirement that Barr withhold the report from the Congress and the public, and not just because he is fully empowered to ignore that Catch-22 in the case of the president. The regulations themselves make it clear that the attorney general has discretion about what to do with the "confidential report" submitted by the special counsel. He must provide the bipartisan leaders of the judiciary committees in both houses of Congress with "an explanation" of the "conclusion," which certainly doesn't preclude him from releasing the full report.
MSNBC's Ari Melber asked former acting FBI director Andrew McCabe what he thought Mueller would send to Attorney General Barr. He replied:
I expect that Director Mueller's team will produce an all-encompassing report that details exactly what they found and exactly what they think about it. I think it's unbelievably important that that that information is shared with the Congress and I'd also like to see it shared to the greatest extent possible with the American people.
He knows Mueller better than most, and I hope he's right about the report. It's going to be up to the public and the Congress to demand that Attorney General Barr do his duty and allow the nation to see it for themselves.