Expect little closure on collusion

Expect little closure on collusion
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Another week and another false alarm that a final report from the special counsel investigation was about to be issued. For those of us eager after nearly two years to find out what Robert MuellerRobert (Bob) Swan MuellerTop Republican considered Mueller subpoena to box in Democrats Kamala Harris says her Justice Dept would have 'no choice' but to prosecute Trump for obstruction Dem committees win new powers to investigate Trump MORE has discovered regarding Russian collusion or the lack thereof, the good news is that one day he will eventually finish his probe. The bad news is that, even when that happens, we are unlikely to get any closure on this national ordeal any time soon.

There will no doubt be an epic battle about who gets to read the report. The Justice Department regulations that govern special counsel probes state that at the conclusion they “shall provide the attorney general with a confidential report explaining the prosecution or declination decisions reached.” However, the federal regulations are silent on what if anything the attorney general should do with the final report once he receives it.


There are a host of reasons why it cannot simply be made public for all to see, including the classification of sensitive evidence and sources, the protection of key individual privacy rights, and federal rules requiring grand jury proceedings to remain secret. Further, going public with information regarding declination decisions is exactly what drew near universal condemnation of former FBI Director James ComeyJames Brien ComeyFBI's spreadsheet puts a stake through the heart of Steele's dossier Hannity invites Ocasio-Cortez to join prime-time show for full hour The Hill's 12:30 Report: Acosta under fire over Epstein plea deal MORE when he did just that after the investigation of the Hillary ClintonHillary Diane Rodham ClintonHillary Clinton slams Trump rally: 'The time has come again' to fight for democracy Trump blasts minority Democrats, rally crowd chants 'send her back' The Memo: Democrats debate Trump response – 'Being righteous and losing sucks' MORE email server. It seems unlikely the Justice Department will make that decision again.

The regulations do contain a separate policy that, upon conclusion of the special counsel investigation, the attorney general will then provide to Congress “an explanation for each action” including any decisions made by the attorney general to narrow the investigation. However, this does not mandate release of the report itself. It rather appears to indicate that the attorney general would provide such information to Congress in a manner he sees fit. In other words, the attorney general gets plenty of latitude on the timing and format of the final report given to Congress.

Not surprisingly, when asked during his confirmation hearing for attorney general about what his plans were for the report, William Barr repeatedly emphasized that he is committed to transparency and making public as much of the findings of the special counsel investigation as possible. While I believe he went as far as he could go without making unrealistic promises, his refusal to commit to a full release of the report left many suspicious about his true intentions and primed to fight over this issue.

Then there will be the actual contents of the report, which are unlikely to fully satisfy anyone when it comes to President TrumpDonald John TrumpAmash responds to 'Send her back' chants at Trump rally: 'This is how history's worst episodes begin' McConnell: Trump 'on to something' with attacks on Dem congresswomen Trump blasts 'corrupt' Puerto Rico's leaders amid political crisis MORE himself. If the final report is silent or simply states there was insufficient evidence to support criminal charges, which is effectively a declination, it is highly doubtful Democrats will simply accept that and move on. Expect House Democrats therefore to demand source materials collected and internal work product prepared. They will likely also subpoena Mueller and insist that he testify.

Trump will argue this is proof that Democrats were never really interested in getting to the truth but instead were singularly focused on taking him down, and his allegations that this was all a “witch hunt” will sound true to his supporters. A House investigation into collusion after the final report comes out will grind on, and this fight could last until the 2020 election.

Another alternative is that Mueller lays out evidence of wrongdoing by Trump but says nothing about what to do with it. Keep in mind, Mueller views his mandate through the lens of a prosecutor in search of criminal violations of federal law, not the broader standard of impeachment, which is a political process with poorly defined contours. He is also aware of the Justice Department policy against the indictment of a sitting president.

House Democrats would thus try to shoehorn the special counsel findings into an impeachment action, which would somewhat support the notion that this entire endeavor should have been handled by Congress in the first place. House Democrats will try to run with it, Senate Republicans will likely do their best to minimize or ignore it, and the American people will continue to wait for an end to this political battle. It is a bleak vision of the months ahead, however, it is a strong possibility based on what we have seen. I really hope I am wrong for the sake of the nation, but I doubt it.

Joseph Moreno is a former federal prosecutor with the Department of Justice, a former staff member with the 9/11 Review Commission, and a United States Army combat veteran. He is now a litigation partner with Cadwalader Wickersham & Taft. Follow him on Twitter @JosephMoreno.