WASHINGTON — This is not a story about when special counsel Robert Mueller will finish his investigation, or when he’ll submit his final report. Speculation has floated for weeks that he’s close to finishing, but no one knows for sure. This is about what will happen once he’s done and what happens after Mueller and his team of prosecutors disband.
The big picture: When the investigation is over, Mueller will submit a report to Attorney General Bill Barr, and Barr will submit a report of his own to Congress. Neither report must be public, but both can be. Pending prosecutions and investigations, such as the criminal case against longtime Trump adviser Roger Stone, will continue; Mueller’s office has been partnering with other federal prosecutors who can take over. Mueller will no longer be the most watched man in America, and he could return to the lucrative job he left in private practice — or at least go to an Apple Store or the airport without having his picture taken.
Mueller was appointed special counsel in May 2017 by Deputy Attorney General Rod Rosenstein. His office, which at its peak had 16 lawyers, plus more assigned on limited details, operates under US Department of Justice regulations. Throughout the investigation, he has been required to report his status and major developments to the senior DOJ official overseeing his work — he reported to Rosenstein while former attorney general Jeff Sessions, who recused himself from the Russia probe, was in office; then to former acting attorney general Matthew Whitaker; and now to Barr.
When Mueller is done, the regulations require him to give Barr a “confidential report explaining the prosecution or declination decisions” that he reached. He’ll have to tell Barr why his office decided to bring criminal charges in certain cases, and why they decided not to bring charges in others. The regulations don’t require Mueller to put any additional information in his report, but he isn’t prohibited from including other information, either.
The regulations are clear that Mueller’s report is “confidential.” They don’t say the report must become public at some later time. But they give Barr discretion to release the report, or at least information from it. The regulations broadly say that any release of information related to the special counsel’s work should be governed by the DOJ’s guidelines about public comments in criminal investigations. Those guidelines warn against sharing too much information, especially in situations where no criminal charges are filed, but they don’t prohibit it altogether.
At his confirmation hearing in January, Barr told the Senate Judiciary Committee that his goal was to provide “as much transparency as [he] can consistent with the law.”
“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law,” Barr said. “I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.”
House Democrats introduced a resolution last week that calls for — but does not require — Mueller’s report to be released in its entirety to Congress and to the public, as long as it did not conflict with another law. The House plans to vote on that bill this week.
Even if that measure doesn’t pass, Congress will know when Mueller is done. The regulations require Barr to notify the chair and ranking members of the House and Senate Judiciary Committees when Mueller finishes. The regulations say Barr must also tell Congress if there was a time when the Justice Department official overseeing Mueller’s work — Rosenstein, Whitaker, or Barr — found that Mueller wanted to do something “so inappropriate or unwarranted” that he was blocked from doing so.
The regulations otherwise leave it up to Barr to decide what exactly to tell Congress. They also give him a choice about whether to make his own report public if it “would be in the public interest.”
There’s no explicit prohibition on Congress releasing Barr’s report — unless it includes classified information, which would need to be redacted or declassified.
Although most of the prosecutions that Mueller’s office has brought are done or in the final stages, there are still outstanding issues. Two key figures who pleaded guilty and agreed to cooperate haven’t been sentenced yet: former national security adviser Michael Flynn and Rick Gates, who served as Trump’s deputy campaign chair and who worked on his inauguration. (Gates also served as right-hand man to Paul Manafort, Trump’s former campaign chair, who faced two separate indictments from Mueller’s office.) Prosecutors and lawyers for Flynn and Gate are due to tell judges this week if they’re ready for sentencing.
A fight over a grand jury subpoena sent to an unidentified foreign-owned company is still before the US Supreme Court. And a former associate of Stone’s, Andrew Miller, recently lost a challenge to a grand jury subpoena, but he could appeal that decision.
Mueller has already positioned several pending cases to continue after he’s gone. He brought charges against Stone for lying to Congress with the US attorney’s office in Washington, and prosecutors from DC have taken the lead during Stone’s court appearances to date. The US attorney’s office in DC is also involved in the special counsel’s prosecution of Russian nationals and entities accused of trying to interfere in the 2016 election; only one of the defendants, Concord Management and Consulting, is participating in the case.
Mueller’s office also has an open case against Russian nationals accused of hacking the Democratic National Committee and Hillary Clinton’s campaign and leaking thousands of stolen emails leading up to the election. The Justice Department’s National Security Division is involved and could take over. None of the defendants have participated, so there hasn’t been anything for prosecutors to do in court so far, but the case can stay on the docket in the event defendants turn up in the United States, or in a country with an extradition agreement.
Manafort had his first sentencing last week in federal court in Alexandria, Virginia, and will have his second on Wednesday in DC, but prosecutors are still hashing out what will happen to real estate that Manafort forfeited as part of a plea deal — they’re negotiating how much banks and other entities that Manafort owed money to will get from the sale of those properties. A prosecutor from the Justice Department’s Criminal Division has been working alongside Mueller’s office on that issue.
There’s also the matter of Manafort’s codefendant, Konstantin Kilimnik, a Russian Ukrainian charged with trying to interfere with witnesses in Manafort’s case. Kilimnik does not appear to be in the United States and has never participated in the case. There aren’t prosecutors from other offices involved, which means Mueller will have to decide if he wants to keep the charges against Kilimnik active when his office disbands, and if so, who should take it on.
Mueller could also hand off any nonpublic investigations to US attorney offices or other divisions within the Justice Department.
The prosecutors that Mueller brought in from private law firms or who were detailed from elsewhere in the Justice Department can go back to their old jobs — or take new ones. Brandon Van Grack, for instance, will lead the Justice Department’s effort to enforce the Foreign Agents Registration Act, Reuters reported last week. Violations of the registration law were a key part of the prosecution against Manafort and Gates, which Van Grack worked on.
There are still 12 lawyers working for Mueller in the special counsel’s office, spokesperson Peter Carr confirmed to BuzzFeed News on Monday. Van Grack and another lawyer, Scott Meisler, went back to the Justice Department but “continue to work on specific matters assigned to them during their detail,” according to Carr. Van Grack was in court last week for Manafort’s sentencing in Virginia.
Law firms that work with clients facing government investigations are certain to pay a premium for attorneys who worked on the most high-profile government investigation in recent history. Mueller, a former FBI director, was earning millions at the law firm Wilmer Cutler Pickering Hale and Dorr when he was appointed by Rosenstein. He has not announced his plans once the investigation is over. (He hasn’t spoken publicly since the probe began, in fact.)