Important thread from Neal Katyal who wrote special counsel rules 20 years ago
Fomer acting Solicitor General, Supreme Court lawyer.
Neal Katyal
?Verified account @neal_katyal
THREAD ON WHETHER MUELLER REPORT WILL BE PUBLIC, AND @washingtonpost STORY ABOUT TRUMP HIRING MANY NEW LAWYERS TO ASSERT EXEC PRIVILEGE.
Short Answer: It will be public.
7:28 PM - 9 Jan 2019
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Neal Katyal
?Verified account @neal_katyal
Jan 9
1.The special counsel rules, which I drafted at DOJ 20 years ago, contemplate 2 kinds of reports. One is a report from Mueller to the AG, at the close of his investigation: “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
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Neal Katyal
?Verified account @neal_katyal
Jan 9
2. That document is to be confidential. But there is a second, separate reporting requirement, which forces the AG to notify Congress “with an explanation for each action…upon conclusion of the Special Counsel’s investigation, including…
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Neal Katyal
?Verified account @neal_katyal
Jan 9
3. ... a description and explanation of instances (if any) in which the AG concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
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Neal Katyal
?Verified account @neal_katyal
Jan 9
4.That report must explain why the investigation has concluded, and any instance in which the AG overruled the Special Counsel. The provision was designed to ensure “Congressional and public confidence in the integrity of the process.”
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Neal Katyal
?Verified account @neal_katyal
Jan 9
5.Notably, we wrote the circumstances for an AG to overrule a Special Counsel very tightly—it has to violate “established Departmental practices.”
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Neal Katyal
?Verified account @neal_katyal
Jan 9
6. So, to take one hypothetical example, generic DOJ opinions about whether a sitting President could be indicted do not create an “established Departmental practice” about whether an individual could be indicted for successfully cheating in a Presidential election.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
7.There is no DOJ established practice that says if a Presidential candidate cheats enough and wins the Presidency, that he gets a get-out-of-jail-free card.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
8.There is one other important aspect to the regulations. If a Special Counsel is worried that the AG may cover something up, the regs give him an important weapon.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
9.Because they require a mandatory report to Congress about any instance of the AG overruling a Special Counsel, they put the thumb on the scale of a Special Counsel telling the AG he will take a sensitive act and waiting for AG to say no. That triggers the reporting requirement.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
10. It is a safeguard to prevent a cover-up, it creates a mandatory report to a separate and coequal branch of govt. So that is why I believe Mueller has a move left to play if Whitaker or Barr (if confirmed) try to stymie him and his full report.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
11. Now the President can try to claim executive privilege. Nixon tried that, it didn’t turn out so well. He got crushed in the Supreme Court. Trump’s claim appears even weaker—much wont even concern presidential deliberations&the part that might (Comey) has been waived by Trump.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
12.And here, there is another problem: Trump’s legal team has been saying they don’t think a sitting President can be indicted.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
13. Leaving aside the point above in (6) and (7), the only way that claim makes any sense is if the President must be impeached first. Every real scholar who says a sitting President can’t be indicted couples that with a view that impeachment is the remedy.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
14. So if the President asserts the view he can’t be indicted, he has to allow the turnover of all investigative material to Congress. Otherwise he would be no different than King George III, literally above the law.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
15.This point is fleshed out in my NYT op-ed below. The key point is that even if you think Trump won't be indicted, his legal claims about his immunity from indictment set up&invite the launch of impeachment investigation+eviscerate his exec priv claims.
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Neal Katyal
?Verified account @neal_katyal
Jan 9
16. Bottom line: the President can try to hide the Mueller Report. He will lose to the public’s right to know.
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