Neal Katyal is a former acting solicitor general of the United States, meaning that at one time he was responsible for making the executive branch’s legal arguments in cases before the Supreme Court. In 1999, he helped draft the regulations for the special counsel law that is currently being used to govern Robert Mueller’s Russia investigation. So, as an author, he understands the original intent of those regulations better than anyone outside that process ever could, and he’s got some advice for the imperiled head of that investigation, deputy attorney general Rod Rosenstein, in advance of his scheduled meeting with the president on Thursday.
…Rosenstein should prepare for Thursday by sending Congress, through appropriate channels, a description of the evidence of wrongdoing Mueller has already turned up. There’s no way to know what a meeting with the volatile president might bring. And the search for the truth might depend on what steps Rosenstein takes beforehand…
…The special counsel regulations did contemplate interim reports to Congress in certain circumstances. Nothing in the regulations forbids them, and while there are possible restrictions on grand jury material and the like, there is much information that could be provided. Rosenstein could, right now, tell Congress (or even a small group of members, with appropriate safeguards, including secrecy) what has happened — what Mueller has learned so far, whether Rosenstein has ever said “no” to Mueller and where the investigation is headed now.
Such a move would be unusual, to say the least. But it is a way for Rosenstein to safeguard his legacy. And it could also safeguard the very principle that no one is above the law. Not even the president — and not even this president.
If you read Kaytal’s entire essay, you’ll see that he’s concerned that his regulations may be an inadequate— “what James Madison called a ‘parchment barrier’ — just a piece of paper, dependent on the spirit of the person enforcing it.” If Rosenstein is fired on Thursday or even if he is fired along with his boss Jeff Sessions after the midterms, as is expected, Trump could gain control over the investigation through a proxy and quietly undermine it.
…the special counsel regulations require the attorney general to report only at the close of the investigation to Congress about any times he said “no” to a special counsel. We wrote them that way on purpose: Interim reports of ongoing cases are generally bad practice, threatening both the investigation and the reputations of individuals without due process. But the downside is that now no one outside the Justice Department has great insight into what Rosenstein has been doing; the public can only infer things from external signs, such as the number of indictments and pleas. In 1999, we anticipated that interim reports to Congress could be made on an as-needed basis, but there is no requirement for them, and it’s not clear that Rosenstein has made any (they can be kept secret)…
…The new acting attorney general for purposes of the Russia probe could say “no” to Mueller for years, and no one else would know until the investigation closed. And while we did set a very high legal threshold for interference with a special counsel investigation, the Trump administration has repeatedly shown comfort playing fast and loose with legal rules.
It seems like the special counsel’s office is abiding by the spirit of rules at the Justice Department that they not take actions close to an election that could have a major impact on the electorates’ preferences. So, after announcing a deal with Paul Manafort around Labor Day, they’ve gone silent. All indications are, however, that Roger Stone may soon get his time in the barrel and be indicted. He’s just one person who could benefit if Trump decides to fire Rosenstein and Sessions the day after the midterms.
Kaytal is offering a pretty weak solution to this potential problem, but it’s at least a partial solution. If Rosenstein intends to follow the advice, he’s going to have a busy afternoon getting everything prepared for Congress before meeting with the president in the morning. But it’s something he should seriously consider if he wants to safeguard the investigation.