(THIS ARTICLE IS COURTESY OF THE HILL NEWS)
Let’s assume a worst-case scenario: Acting Attorney General Matthew Whitaker straight-up fires special counsel Robert Mueller — no half-measures of refusing to allow Mueller to take certain investigative steps, or drastically cutting Mueller’s budget to starve his Russia investigation of resources, but a flat out “You’re fired!”
If that were to happen before Democrats take control of the House in 2019, no congressional committee is likely to subpoena Mueller to testify to his findings or the evidence he has obtained. Until January, the Republican majority will continue to stand behind President Trump. So what could Mueller do to disclose his investigation in the absence of receiving a congressional subpoena to testify or hand over his findings? And what would he choose to do — assuming he believed the president has committed wrongdoing the public should know about?
Taking the second question first, Mueller may choose to do absolutely nothing. We know that Mueller is a military man; he follows orders. And his marching orders as special counsel, pursuant to the governing regulations, are to conduct relevant investigations, bring appropriate charges, and write a confidential report for the Department of Justice (DOJ). So, once the job is done, by firing or otherwise, it wouldn’t be out of character for Mueller to simply go quietly off into the sunset. To date, he has kept an extremely low profile. He doesn’t even show up in court when his cases are brought, and the leak-proof nature of the ship he captains is the stuff of legend.
But let’s assume for a moment that Mueller instead goes the way of former FBI Director James Comey and is more than willing, upon an unceremonious firing, to present his side of the story to the public in any way he’s asked to do so. Or that (perhaps more likely) Mueller reluctantly concludes, upon his firing, that we have reached a point of constitutional crisis requiring the immediate publicizing of the president’s misdeeds because the DOJ under Whitaker is not acting in the best interests of the country. What would Mueller’s options be for disclosing currently non-public evidence and conclusions of his investigation without a subpoena from Congress?
The special counsel regulation, 28 CFR 600 et seq., requires the special counsel to write a report at the conclusion of his work, explaining his prosecution and declination decisions. It also states that the attorney general can publicly release the report, if that is in the public interest, to the extent that release complies with applicable legal restrictions. And there’s the rub — Whitaker would be hard-pressed to explain how Mueller’s report being released is not a matter of massive public interest, but he could fall back on secrecy rules of the grand jury to argue that grand jury materials disclosed in the report should not be released, resulting in the continued secrecy of most or all of the report.
Federal grand jury rules, which apply to Mueller as special counsel, are strict. Generally speaking, pursuant to Federal Rule of Criminal Procedure 6(e), a government lawyer cannot disclose proceedings before, or evidence gathered by, the authority of the grand jury, even after the lawyer leaves government service. Exceptions are limited. One exception states that a government lawyer can disclose material or testimony gained under a grand jury subpoena to local or state lawyers, for the purpose of assisting in the prosecution of a federal criminal law violation.
Prosecutors use this provision to share information when conducting an investigation in conjunction with a district attorney’s office, or a state attorney general’s office, for example. Without question, Mueller has been in communications with the New York State Attorney General’s Office, and could share information with them under this exception of Rule 6(e), although this would not be a public disclosure on Mueller’s part. It is also possible that additional pieces of the Mueller investigation could make their way to the Southern District of New York or another U.S. attorney’s office and, ultimately, could come to light through charges that way.
Of course, much evidence is not subject to Rule 6(e). Witness statements, for example, given to agents or prosecutors do not fall under the rule’s protections. Documents provided voluntarily to the special counsel’s office, instead of being provided pursuant to subpoena, likewise can be discussed publicly. And, of course, anything disclosed publicly through the criminal processes that have played out in cases the special counsel has charged, is fair game.
Finally, Mueller’s conclusions about crimes committed, as opposed to descriptions of the underlying evidence itself, aren’t prohibited from disclosure under Rule 6(e), although he would have to be careful about violating DOJ guidelines for discussing criminal subjects and proceedings, even with a subpoena.
In short, if Mueller were fired tomorrow, he would be very limited in what he could say about his investigation — and that indeed may be the impetus for the president’s action in firing Jeff Sessions and replacing him with a man who appears, by most accounts, to be a Trump loyalist. We would all have to wait for what certainly would be the world’s most anticipated congressional subpoena.
Joel Cohen, a former state and federal prosecutor, practices criminal defense law at Stroock & Stroock & Lavan LLP in New York. Cohen is an adjunct professor at Fordham Law School. He regularly lectures and writes on law, ethics and social policy for the New York Law Journal and other publications, and is the author of “Broken Scales: Reflections on Injustice.”
Jennifer Rodgers is a lecturer in law at Columbia Law School. Until mid-2018, she was executive director of the Center for the Advancement of Public Integrity at Columbia Law School and now serves on its advisory board.