Robert Mueller’s first duty is to the truth. His mandate as special counsel is to investigate Russian meddling in the 2016 election. His powers in that role allow him to bring criminal charges if they are warranted. But his most fundamental obligation is to answer a complex question: What happened?
It’s clear that President Donald Trump doesn’t want that question to be answered. A purge of the Justice Department’s upper ranks, perhaps coupled with Mueller’s dismissal, now feels like a matter of when, not if.
White House press secretary Sarah Huckabee Sanders told reporters Tuesday afternoon that Trump “certainly believes he has the power” to fire the special counsel, and that “a number of individuals in the legal community, and including at the Department of Justice, said he has the power to do so.” It’s been known that Trump attempted as much in June, but on Tuesday evening The New York Times reported that the president tried again in December. And CNN reported later that night that Trump is also openly weighing the ouster of Deputy Attorney General Rod Rosenstein so that he can install someone else to supervise—and curtail—the Russia investigation.
If Trump fires the special counsel or substantively hamstrings his ability to pursue the Russia investigation to whatever end, Mueller won’t be able to fulfill that responsibility to the truth. Fortunately, the former FBI director has an option of last resort: releasing everything he’s discovered to the American public, in one way or another.
This drastic step would not be necessary in a healthier republic. The best check on presidential abuses is Congress, which has its own inherent powers to conduct investigations, subpoena witnesses and documents, and even hold executive-branch officials in contempt or remove them from office. In theory, this would be the best place to which Mueller could turn to ensure his investigation’s findings wouldn’t be buried by the Trump administration and its more pliable officials.
Unfortunately, the House and Senate Republicans who control Congress have been largely supine when it comes to challenging the president. Most of them have kept quiet whenever Trump threatened the Justice Department’s independence or tried to interfere in the Russia investigation. More congressional Republicans tend to defend the president from investigators than not. House Speaker Paul Ryan told reporters in March that he received assurances Trump wouldn’t fire Mueller. But he also stood by as Republicans on the House Intelligence Committee, led by Trump ally Devin Nunes, abused their oversight powers in a misleading effort to discredit the FBI over the past three months.
Some Senate Republicans have proposed legislation to insulate Mueller from Trump’s whims, only to be stonewalled by Majority Leader Mitch McConnell, whose wife, Elaine Chao, serves in Trump’s cabinet as the secretary of Transportation. “I haven’t seen a clear indication yet that we needed to pass something to keep him from being removed because I don’t think that’s going to happen, and that remains my view,” McConnell told reporters on Tuesday. Though he said this before Sanders’s comments and the Times and CNN reports, McConnell has been steadfast in his position for many months; it’s not likely to change even in the face of increasingly compelling evidence.
Based on Ryan and McConnell’s intransigence so far, it’s hard to see how Congress would take forceful action to protect Mueller under their leadership. Democrats won’t have an opportunity to retake Congress until the November midterms, when they will need a historic landslide to seize both chambers (winning the House looks likely, but not the Senate). Even then, the new Congress wouldn’t be seated until January. That means Trump has at least nine months of relatively unchecked power over the Justice Department before Democrats have a chance of even moderately constraining him.
As a result, Mueller’s best options to preserve his investigation’s findings, if the worst should occur, are more unorthodox. The most straightforward method would be to send the most relevant findings to the press, either through anonymous sources or by simply mailing select reporters a manila envelope containing key documents. Former FBI Director James Comey deployed this tactic to extraordinary effect last year when he used a middleman to get copies of his memos about Trump’s interference attempts into the Times’s hands. The disclosures culminated in Mueller’s appointment as special counsel.
Another option would be to clandestinely deliver his incomplete findings to a sympathetic member of Congress. That representative or senator could then read the documents into the congressional record. Members of Congress enjoy an absolute legal privilege from prosecution for anything said during House and Senate debates, making them an ideal vehicle for getting politically sensitive material into the public record. Alaska Senator Mike Gravel famously used this privilege to read portions of the Pentagon Papers on the Senate floor in 1971.
One cause for hesitation is that it may be unlawful for Mueller to publicly disclose information about an ongoing investigation. “Disseminating non-public, sensitive information about DOJ matters could violate federal laws, employee non-disclosure agreements, and individual privacy rights,” the Justice Department’s manual for federal prosecutors warns. The manual states that such disclosures could “jeopardize the investigation of a case,” which seems like a lessened concern if the president shuts down the Russia inquiry, or “unfairly damage the reputation of a person,” which would be a Herculean feat in Trump’s instance.
A greater hurdle is that the Russia investigation initially began as a counterintelligence probe, meaning that significant aspects of it may be classified on national-security grounds. This could preclude Mueller from releasing key materials without breaking multiple federal laws. Trump’s professed desire to wield the Justice Department as a political weapon and Attorney General Jeff Sessions’s zeal in hunting down leakers would make it especially dangerous for him or any of his subordinates to distribute classified information.
To mitigate some of that danger, Mueller could opt to disclose information to the Senate Intelligence Committee. Unlike its House counterpart, the committee has maintained a bipartisan front during its investigation into Russian interference. North Carolina Senator Richard Burr, the committee’s Republican chairman, admirably brushed off direct pressure from Trump to end the probe last year. He and Virginia Senator Mark Warner, the committee’s Democratic ranking member, would be well-placed to vet sensitive materials.
Mueller’s nuclear option would still impose a personal and professional toll on himself, especially if Trump successfully weaponizes the Justice Department against his political opponents. Would it be worth it? It’s possible that Mueller has found nothing incriminating on Trump himself, nor any evidence of collusion between his campaign and the Kremlin. It’s also possible that Trump is shutting down Mueller because he’s guilty of a crime and he fears Mueller could find a way to prove it.
Either way, the American people deserve answers about Russian election meddling. Mueller is the only credible person who can provide them. If Trump moves to prevent him from doing so, the special counsel has alternatives he can choose to exercise. They may be costly, but there’s an old English legal maxim with which Mueller is surely familiar: Fiat justitia ruat caelum. Let justice be done though the heavens may fall.