https://lawfareblog.com/will-we-ever-learn-what-bob-mueller-knows
Longish....but I have tried to capture the key paragraphs here. (There is more at the link for those interested.) This article was first published on 3/21/18.
The question of whether and how the public will learn what Mueller knows is actually complicated—complicated legally, complicated historically, and complicated as well with respect to another variable: How Mueller imagines his role as special counsel.
There are a number of possible models for Mueller in that self-imagination, each of which would imply an entirely different approach to reporting, either to the public or to Congress, on his findings. His predecessors have taken radically different approaches to the question of the role of the special prosecutor as a reporter of his findings—and they have operated as well under different legal obligations and constraints, different both from each other and from Mueller.
To date, Mueller has given few hints of how he sees his role. Yet on very few questions—other than the facts of what he turns up—does more depend.
..................
If Mueller follows the orthodox path—and the reaction to Comey’s behavior might well militate towards orthodoxy—we will only learn what Mueller knows if it produces indictments. We will learn about the extent of “collusion” or about possible obstructions of justice only to the extent his team concludes that the activity violated some federal criminal law and to the extent the team believes it can prove that violation beyond a reasonable doubt using admissible evidence. Short of that, the investigation will wind down and shut up and we’ll have to rely on congressional investigators, civil litigation, and historians for a narrative account of what actually happened. Those who were outraged by Comey’s disclosure and evaluation of the evidence in the Clinton matter should pause a moment to understand that this same behavior is precisely what they are now seeking from Mueller.
But there are, of course, other models. In the past, special prosecutors have issued reports of various sorts detailing their findings, including their findings as to unindicted subjects. Broadly speaking, at least in the modern era, these reports have taken two forms: final reports of the investigation, and referrals to Congress of material that might be grounds for impeachment.
...................
In 1974, the office of Watergate Special Prosecutor Leon Jaworski transmitted a referral of impeachment material related to President Richard Nixon to the House Judiciary Committee. Jaworski later characterized the document as a “road map”: 55 pages of bare-bones factual information intended to point committee members to the relevant evidence so they could draw their own conclusions. Along with the “road map,” Jaworski included the evidence itself: what The New York Times described as “a briefcase stuffed with 800 pages of documents and 13 tape recordings of Nixon's conversations in the Oval Office.”
The “road map” has never become public, as it contained grand jury information, which prosecutors are forbidden from disclosing under the Federal Rule of Criminal Procedure 6(e). But it was not a full report—neither an evaluation like Comey’s statement about the Clinton email evidence nor an effort to characterize the narrative. It was simply a guide to the evidence that Jaworski was transmitting. The idea was that the prosecutor had uncovered evidence that the House Judiciary Committee needed to see to fulfill its own constitutional obligations to consider impeachment, so Jaworski sent over the evidence and provided a kind of table of contents for it.
...................
Then there’s the Ken Starr model. Starr had a particularly grandiose vision of the truth-reporting role of the special prosecutor. But separate from Starr’s particular understanding of the law, the role itself had morphed by the time he investigated Bill Clinton. For one thing, the final report was now a matter of law: It required that the independent counsel to “before the termination of the independent counsel’s office . . . file a final report . . . setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought.” What’s more, a different provision of the independent counsel law required that Starr refer to Congress any information that might be grounds for an impeachment: “An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.”
One of us argued in a 2002 book that Starr let the truth-reporting role associated with the independent counsel law overwhelm the rest of the law. Indeed, Starr and his successors as independent counsel issued factually-rich narrative accounts of the Vince Foster suicide, the White House Travel Office Affair, a now-forgotten scandal about FBI files, Whitewater, and—of course—Starr’s impeachment referral to Congress over the Monica Lewinsky matter.
Whether Starr was justified in doing so is not, for present purposes, relevant. The key point is that he adopted a deeply different vision of his role than Jaworski took—one that was much further from the orthodox view of the federal prosecutor’s function. Starr saw the public reporting function as integral to the function of the independent counsel. And critically, he didn’t merely report to Congress on the President’s conduct. He crafted the report as a detailed narrative that also contained lengthy evaluations of the evidence with reference as possibly impeachable offenses. Starr did not make this report public—a fact long forgotten—and its transmission to Congress, along with the mountain of grand jury information it contained, was authorized by the special court that appointed him under the old law. But Congress quickly released the document in its entirety. And the result was that the impeachment referral provision—meant to enshrine in law a requirement that independent counsels behave as Jaworski did—came to function in a very different way: as a vehicle for the special prosecutor to issue a detailed, evaluative narrative document that both reported the truth as the investigation found it and evaluated it against the law. A number of independent counsels used the final report requirement in similar fashions.
................
There’s still another possibility if Mueller is truth-commission oriented. Writing on Lawfare, both Paul Rosenzweig and Andrew Kent have proposed the use of a special grand jury under 18 U.S.C. § 3331 to issue a public report on Russian election interference. Unlike regular grand juries, special grand juries have the power not only to examine misconduct but also to make their findings public, albeit with court approval and after notifying the individuals named in the report and allowing them to respond. While convening a special grand jury usually requires an order from the attorney general or acting attorney general, such a jury may also be empaneled independently in “a judicial district containing more than four million inhabitants”—which, as Kent notes, describes the Southern District of New York, where Trump Tower is located.
Reports issued by special grand juries don’t have to be confined to criminal wrongdoing: § 3331(a)(1) allows for reports on “noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee.” But while the provision’s focus on wrongdoing by public officials would encompass a hypothetical Mueller report on, say, obstruction of justice by President Trump, it could make for an awkward fit with public disclosures on any activity that took place before the election, such as coordination with the Russian government during the campaign season.
....................
To put the matter bluntly, it all boils down to how Mueller sees himself and his role.
Longish....but I have tried to capture the key paragraphs here. (There is more at the link for those interested.) This article was first published on 3/21/18.
The question of whether and how the public will learn what Mueller knows is actually complicated—complicated legally, complicated historically, and complicated as well with respect to another variable: How Mueller imagines his role as special counsel.
There are a number of possible models for Mueller in that self-imagination, each of which would imply an entirely different approach to reporting, either to the public or to Congress, on his findings. His predecessors have taken radically different approaches to the question of the role of the special prosecutor as a reporter of his findings—and they have operated as well under different legal obligations and constraints, different both from each other and from Mueller.
To date, Mueller has given few hints of how he sees his role. Yet on very few questions—other than the facts of what he turns up—does more depend.
..................
If Mueller follows the orthodox path—and the reaction to Comey’s behavior might well militate towards orthodoxy—we will only learn what Mueller knows if it produces indictments. We will learn about the extent of “collusion” or about possible obstructions of justice only to the extent his team concludes that the activity violated some federal criminal law and to the extent the team believes it can prove that violation beyond a reasonable doubt using admissible evidence. Short of that, the investigation will wind down and shut up and we’ll have to rely on congressional investigators, civil litigation, and historians for a narrative account of what actually happened. Those who were outraged by Comey’s disclosure and evaluation of the evidence in the Clinton matter should pause a moment to understand that this same behavior is precisely what they are now seeking from Mueller.
But there are, of course, other models. In the past, special prosecutors have issued reports of various sorts detailing their findings, including their findings as to unindicted subjects. Broadly speaking, at least in the modern era, these reports have taken two forms: final reports of the investigation, and referrals to Congress of material that might be grounds for impeachment.
...................
In 1974, the office of Watergate Special Prosecutor Leon Jaworski transmitted a referral of impeachment material related to President Richard Nixon to the House Judiciary Committee. Jaworski later characterized the document as a “road map”: 55 pages of bare-bones factual information intended to point committee members to the relevant evidence so they could draw their own conclusions. Along with the “road map,” Jaworski included the evidence itself: what The New York Times described as “a briefcase stuffed with 800 pages of documents and 13 tape recordings of Nixon's conversations in the Oval Office.”
The “road map” has never become public, as it contained grand jury information, which prosecutors are forbidden from disclosing under the Federal Rule of Criminal Procedure 6(e). But it was not a full report—neither an evaluation like Comey’s statement about the Clinton email evidence nor an effort to characterize the narrative. It was simply a guide to the evidence that Jaworski was transmitting. The idea was that the prosecutor had uncovered evidence that the House Judiciary Committee needed to see to fulfill its own constitutional obligations to consider impeachment, so Jaworski sent over the evidence and provided a kind of table of contents for it.
...................
Then there’s the Ken Starr model. Starr had a particularly grandiose vision of the truth-reporting role of the special prosecutor. But separate from Starr’s particular understanding of the law, the role itself had morphed by the time he investigated Bill Clinton. For one thing, the final report was now a matter of law: It required that the independent counsel to “before the termination of the independent counsel’s office . . . file a final report . . . setting forth fully and completely a description of the work of the independent counsel, including the disposition of all cases brought.” What’s more, a different provision of the independent counsel law required that Starr refer to Congress any information that might be grounds for an impeachment: “An independent counsel shall advise the House of Representatives of any substantial and credible information which such independent counsel receives, in carrying out the independent counsel’s responsibilities under this chapter, that may constitute grounds for an impeachment.”
One of us argued in a 2002 book that Starr let the truth-reporting role associated with the independent counsel law overwhelm the rest of the law. Indeed, Starr and his successors as independent counsel issued factually-rich narrative accounts of the Vince Foster suicide, the White House Travel Office Affair, a now-forgotten scandal about FBI files, Whitewater, and—of course—Starr’s impeachment referral to Congress over the Monica Lewinsky matter.
Whether Starr was justified in doing so is not, for present purposes, relevant. The key point is that he adopted a deeply different vision of his role than Jaworski took—one that was much further from the orthodox view of the federal prosecutor’s function. Starr saw the public reporting function as integral to the function of the independent counsel. And critically, he didn’t merely report to Congress on the President’s conduct. He crafted the report as a detailed narrative that also contained lengthy evaluations of the evidence with reference as possibly impeachable offenses. Starr did not make this report public—a fact long forgotten—and its transmission to Congress, along with the mountain of grand jury information it contained, was authorized by the special court that appointed him under the old law. But Congress quickly released the document in its entirety. And the result was that the impeachment referral provision—meant to enshrine in law a requirement that independent counsels behave as Jaworski did—came to function in a very different way: as a vehicle for the special prosecutor to issue a detailed, evaluative narrative document that both reported the truth as the investigation found it and evaluated it against the law. A number of independent counsels used the final report requirement in similar fashions.
................
There’s still another possibility if Mueller is truth-commission oriented. Writing on Lawfare, both Paul Rosenzweig and Andrew Kent have proposed the use of a special grand jury under 18 U.S.C. § 3331 to issue a public report on Russian election interference. Unlike regular grand juries, special grand juries have the power not only to examine misconduct but also to make their findings public, albeit with court approval and after notifying the individuals named in the report and allowing them to respond. While convening a special grand jury usually requires an order from the attorney general or acting attorney general, such a jury may also be empaneled independently in “a judicial district containing more than four million inhabitants”—which, as Kent notes, describes the Southern District of New York, where Trump Tower is located.
Reports issued by special grand juries don’t have to be confined to criminal wrongdoing: § 3331(a)(1) allows for reports on “noncriminal misconduct, malfeasance, or misfeasance in office involving organized criminal activity by an appointed public officer or employee.” But while the provision’s focus on wrongdoing by public officials would encompass a hypothetical Mueller report on, say, obstruction of justice by President Trump, it could make for an awkward fit with public disclosures on any activity that took place before the election, such as coordination with the Russian government during the campaign season.
....................
To put the matter bluntly, it all boils down to how Mueller sees himself and his role.
