President Donald Trump may just get the last word when it comes to the special counsel investigation looking into his campaign’s alleged ties to Russia during the 2016 presidential race.
Trump’s personal lawyer and friend, former New York City Mayor Rudy Giuliani, believes that Special Counsel Robert Mueller should give the White House the chance to “correct” his final investigative report before Congress and the American public get to see it.
“As a matter of fairness, they should show it to you — so we can correct it if they’re wrong,” Giuliani told The Hill during a Thursday night telephone conversation. “They’re not God, after all. They could be wrong.”
As the special counsel investigation slowly but inevitably advances towards completion, legal experts disagree on how to conclude the 20-month-long inquiry. There is general legal consensus that a serving president cannot be indicted while in office, so most observers are waiting for a detailed report — much like independent Counsel Kenneth Starr’s 1998 report which described President Bill Clinton’s affair with a White House intern in lurid detail.
Longstanding guidelines at the Department of Justice prohibit prosecutors or law enforcement personnel from commenting on their own on an investigation where an indictment has not been issued. In fact, former FBI Director James Comey was ostensibly fired for violating this policy when he held a press conference exonerating failed presidential candidate Hillary Clinton.
However, Mueller was appointed under a different statute, one that requires that the special counsel shall provide the attorney general with a “confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
Mueller’s investigative summary would be “confidential” and could only be publicly released if the attorney general finds the report to “be in the public interest.” Long-standing Department of Justice policy actually forbids prosecutors and law enforcement from commenting on the details of an investigation when no charges are filed, and former FBI Director James Comey was actually fired for violating this standing order when he called Clinton’s misuse of classified material “extremely careless.”
Therefore, Giuliani is confident that if Mueller’s final report is made public, it would only be after hurdling several legal obstacles. The former mayor has said before that the White House would like to review the report before anyone else to see if the president’s executive privilege has been violated.
In fact, the president’s general counsel are said to be “gearing up to prevent President Trump’s confidential discussions with top advisers from being disclosed to House Democratic investigators and revealed in the special counsel’s long-awaited report.”
However, Giuliani has admitted that withholding parts of the inevitable Mueller report would cost Trump politically, even if it were his legal prerogative to do so. He acknowledged that a public backlash could undermine the president, but reserved the right to correct the record, if necessary.
Put up or shut up
But other legal scholars weren’t as confident as the president’s lawyer. “I don’t believe that Mueller would, unless it was so apparently wrong, correct something,” said Mark Zaid, an experienced D.C.-based attorney with experience in government litigation.
At a minimum, however, Giuliani believes that Trump’s legal team will be the first to see the special counsel report, which would give the White House time to prepare a rebuttal. “Of course we have to see [the report] before it goes to Congress. We have reserved executive privilege and we have a right to assert it. The only way we can assert it is if we see what is in the report,” he said.
Until the investigative summary is published, the president and his team of 17 attorneys can only wait. Giuliani expresses his frustration with the ongoing probe by telling The Hill that “someone should write an editorial” demanding that Mueller “puts up or shuts up.”