Waiting in Vain for the Mueller Report

Bob Woodward’s Fear was a blockbuster. Michelle Obama’s Becoming was the best-selling book of 2018. But as far as prepublication buzz goes, neither of them can match the expectations attached to the Mueller report. No one knows when Special Counsel Robert Mueller will file a concluding document with the attorney general, or when all or part of it will be made public, but that hasn’t prevented a devoted sentinel watch.

But there’s a more fundamental question surrounding the report than when the document will land, which is whether it will even exist—or rather, whether it will exist in a form worth the anxious wait. Whether through wishful thinking about a report that could put the final nail in Donald Trump’s political coffin or expectations created by the famous (or infamous) Starr Report in 1998, the unspoken assumption has been that Mueller will produce a lengthy summary of his probe into Russian interference in the 2016 election, but legal experts and veterans of previous investigations disagree.

“I believe that many, including many in the press, have done the country a disservice by creating the impression that when he gets done, Mueller is going to write this scathing, lengthy report detailing what an asshole the president is, even if he’s not a criminal,” says Paul Rosenzweig, a senior fellow at the R Street Institute think tank who was a senior counsel on the Whitewater investigation. “If my thesis about Mueller is right, then that’s just not happening.”

John Q. Barrett, a law professor at St. John’s University who served as an associate counsel on the Iran-Contra investigation, agrees. “They are not going to get a narrative, multi-hundred-page, factually organized, appended-documents road map from Mueller,” Barrett says. “Mueller might send a five-page memo to [Attorney General William] Barr, saying, ‘I got a guilty plea from these people, and I didn’t charge these ones.’”

[Read: Americans don’t need the Mueller report to judge Trump]

Though some observers, such as Mother Jones’s David Corn, have been warning about this potential outcome for months, the caution doesn’t seem to have permeated. Several intense exchanges during Barr’s confirmation hearings in January focused on whether he would release the documents, and in what form—a question that could be moot if it’s only a few pages of information that’s already known or mostly known to the public. Several publishers are hoping to replicate the success of PublicAffairs Books, which scored a best seller by hurriedly putting the Starr Report into print.

The Starr Report casts a long shadow. With its detailed chronology and salacious revelations about President Bill Clinton’s sex life, the more-than-200-page document remains an astonishing read even now, more than 20 years on. While members of the independent counsel Kenneth Starr’s team said they never expected the report to become public—just as Leon Jaworski’s Watergate “road map” only came to light last year—it was written with a reading audience in mind. (Congress voted to release Starr’s report to the public.)

“The idea was to do a factual summary in part to simplify things for the reader, and also to have some indication of why you should believe Monica Lewinsky. And so that required including a lot of information about when she went to the White House, what time, how long she was there, what she heard with the president on the phone, that sort of thing,” Stephen Bates, who wrote much of the report, told The Atlantic last year, comparing the work to a Nabokov novel: “To the extent that the report is a story, it’s a story with an apparatus of footnotes or commentary. Like Pale Fire.”

Starr’s report also came just five years after Lawrence Walsh, the independent counsel for Iran-Contra, released a lengthy report on his investigation. That document represented a settling of scores. Walsh was angry that President George H. W. Bush had pardoned several players in the investigation in the closing weeks of his term in office, thus short-circuiting years of work toward putting defendants on trial. The Walsh report was his chance to lay out evidence for a case that he felt cheated out of the chance to make in court.

Mueller’s report comes at a different time and in different conditions. Thus far, Mueller has not had to contend with pardons sabotaging his case, though this remains a possibility. He does not seem to have any literary ambitions, and his feud with President Trump has been one-sided, rather than the hostile back-and-forth between Starr and Clinton. Perhaps more to the point, the mechanism under which Mueller was appointed is different. Walsh and Starr were both appointed under the Ethics in Government Act. Per that law, an independent counsel was required to make a report to Congress if he or she found anything impeachable. The counsel was also required to deliver a final report to a special panel of federal judges of all the cases brought and how they’d been resolved, which the court could then make public.

But in 1999, Congress allowed the law to lapse—a reaction, in part, to backlash to the length and cost of the Walsh and Starr investigations, as well as to the Starr report itself. Concerns about the old system included unease among Justice Department lawyers who felt that lawmakers were drawing the executive branch beyond its appropriate role and deputizing independent counsels.

“There was a huge DOJ consensus that Congress in the Ethics in Government Act had farmed out too much of its oversight to the independent counsels. Prosecutors don’t act as fact-gatherers for Congress. Congress needs to gather its own facts,” Barrett says. The Starr Report, which Barrett describes as a sort of rough draft of articles of impeachment, was a good example of prosecutors doing lawmakers’ work.

With the law lapsed, the Justice Department issued regulations to allow the appointment of special counsels in unusual cases, such as those including a conflict of interest. That’s the authority under which Deputy Attorney General Rod Rosenstein appointed Mueller. But the regulations don’t have the same reporting requirements as the old law. Special counsels are more like U.S. attorneys, bound by the Justice Department manual, just with extraordinary assignments. (Many of Mueller’s attorneys are DOJ lawyers temporarily detailed to his team, though others are former prosecutors drafted back into service from private practice.)

[Read: Robert Mueller is not invincible]

Mueller adheres to an austere style that is both personal and rooted in his long service at the Justice Department. This means that in his final report, he’s unlikely to go beyond what has already been revealed in court filings.

“DOJ does law enforcement, and Mueller is DOJ,” Barrett says. “Investigating and pursuing serious crimes is his job, but the bigger part of the picture is not DOJ’s job,” he adds, referring to a narrative report that would point the way for Congress beyond indictable criminal offenses.

Mueller has already demonstrated his just-the-facts style in the nearly two years he’s been at work. Unlike Starr, who opted for a strategy of cultivating press attention and speaking to reporters during his investigation, Mueller has been aggressively tight-lipped. For him to put together a lengthy narrative now would be to repudiate his entire approach to the case so far.

The lack of a lengthy final report may be a challenge to expectations, but it’s not necessarily a challenge to public awareness. As the Associated Press demonstrated recently, Mueller has effectively been writing his report out in public, through a series of detailed and careful indictments, charging documents, and plea documents filed in federal court as his team works through prosecuting cases. While there is some information that is redacted and there may be more under seal, those documents will presumably one day become public as well. And outside the court of law—which is what the imagined Mueller report would cover, since what’s in court is already filed—there is already ample evidence for the public and for politicians to make their judgments about Trump, as I have written.

“Prosecutors who decline cases just close,” Rosenzweig says. “They might write a memo to the file about why they didn’t prosecute. With very rare exceptions, which by the way get condemned—see James Comey—prosecutors who decide not to do anything put everything in a box and send it to archives.”

Someday, those archives could make for juicy reading. In the meantime, the responsibility to act and judge Trump and his administration rests where it belongs: with the voters and their elected representatives.