Waiting for Mueller's report -- Here's the truth about what the Special Counsel can and can't do

Former FBI Director Robert Mueller was appointed Special Counsel to investigate the following three things:

1. Possible links or coordination between Russia and individuals associated with Donald Trump’s presidential campaign.

2. Any matters arising directly from the Special Counsel’s investigation or that had already arisen from the investigation’s pre-Mueller phase.

3. Federal crimes committed with the specific intent to interfere with the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses.

Expect Mueller’s report to focus on these core areas, keeping in mind that some of them have been previously revealed through indictments, guilty pleas, and sentencing memos. The following realities will also affect what we see of Mueller’s work:

1. The Mueller Report must be confidential, at least initially, according to the federal regulations governing the Special Counsel’s conduct. It will go to Attorney General William Barr who has vowed to make as much of the report’s information public as he can, consistent with federal law and national security. Since Mueller is a Department of Justice (“DOJ”) employee, he can reveal grand jury and national security material to the Attorney General, but not all of this material can be released to the general public unless special circumstances are met.

A federal court order is required before grand jury transcripts or summaries can be released outside of the Department of Justice. This is true even if the transcripts and summaries are released under seal to the House of Representatives. Some national security materials will never be released. Barr can ask Mueller to seek a court order authorizing the release of selected grand jury materials, but Mueller may decide to sidestep this necessity by providing Barr with a sanitized version of the report, for public consumption, which relies on FBI interviews rather than grand jury testimony.

2. The Mueller report must not unfairly malign uncharged individuals. People who are indicted have the opportunity to defend themselves in a court of law. It is DOJ policy not to smear anyone by name in a charging instrument unless that person is formally charged with a crime. This is why indictments regularly refer to unindicted persons as “Individual A” or “persons known and unknown to the grand jury.” We can expect the Mueller report to follow that policy in general, with one important exception.

3. Links and coordination between Russia and individuals associated with Donald Trump’s presidential campaign are unlikely to play an important role in the publicly disseminated portion (or summary) of the report. To begin with, we already know, from Mueller’s two massive indictments of Russian nationals, about Russian efforts to influence the election via computer hacking and social media campaigns.

We also know about potential or aborted efforts to coordinate with the Russians through the George Papadopoulos plea and sentencing papers. More importantly, it is fair to assume at this point that no significant coordination existed, at least of a criminal nature, between the Trump campaign and Russia or we would have seen mention of it in the form of returned indictments or offense statements connected to publicly filed plea agreements.

Previously unknown details about the Trump Tower meeting and other events may provide titillation, but if they did not rise to the level of a crime their long-term significance is likely to be minimal.

4. New matters arising directly from the investigation, other than perjury and obstruction-related offenses, have largely been covered by the Manafort and Gates prosecutions or have been handed off to other DOJ components, such as the Southern District of New York.

5. This leaves perjury, obstruction of justice, and witness intimidation. Mueller has already charged or convicted several persons for such offenses, including Papadopoulos, Michael Flynn, Rick Gates, Alex van der Zwaan, and Roger Stone. But to date, Mueller has been silent on what role if any President Trump himself played in alleged efforts to obstruct justice through witness tampering and other methods.

We know from multiple sources that Mueller’s office is sharply focused on this topic. How can the Special Counsel report to the American people on the vitally important question of whether President Trump sought to obstruct Mueller’s investigation without smearing an unindicted man? The answer lies, I believe, in the very fact of President Trump’s special stature.

Precisely because of President Trump’s status as an un-indictable sitting president, Mueller and Attorney General Barr will reason that it is fair game to publicly report on President Trump’s response to the Special Counsel’s investigation.

The president is not just any citizen, without the means to publicly defend himself. To the contrary, Trump has masterfully used his presidential bully pulpit to destroy political enemies and assassinate the character of Mueller and his crew. The rationale behind concealing the conduct of unindicted suspects simply does not exist in the case of President Trump. Therefore, we can expect a meticulously detailed rendition, dispassionately presented but deadly in its detail, of President Trump’s crude, ham-handed efforts to hamstring Mueller’s probe.

Did those efforts amount to criminal conduct, even if such conduct cannot now be indicted? Based on what is publicly known so far, the answer is no. But we are bound to learn new details.

Prosecutors are human beings who resent being subject to constant public attacks by the powerful figures they are charged with investigating. The attacks on Mueller and his team by President Trump and his surrogates have undoubtedly engendered private anger within the Special Counsel’s Office. Expect to see a very hard-hitting and detailed report, meticulous in its factual presentation, on the question of presidential obstruction.

I have heard that if you attack President Trump, he punches back ten times harder. Bob Mueller has been careful so far not to attack President Trump. But President Trump is about to come face to face with Bob Mueller’s big stick.