President Trump did not tweet, rant, or point his finger at Special Counsel Robert Mueller when he delivered his report to Attorney General William Barr. Trump, in fact, said nothing. He didn’t have to. He won by relentlessly and ruthlessly ramming into the public consciousness the words “no collusion,” “witch hunt,” and “hoax” about the Mueller investigation.
Trump won when his fervid base supporters shouted, screamed, and stomped “lock her up,” the “her” being Hillary Clinton. He won when he fired Attorney General Jeff Sessions whose only real sin in Trump’s eye was his recusal from the investigation. He won when his acting Attorney General Matthew Whitaker made clear that he would be the sole arbiter of what was released or not in the Mueller Report. He won when his permanent Attorney General Barr pretty much hewed to the same line. He won when he dithered, dodged and finally scuttled any notion that he’d do a face-to-face interview with Mueller’s team.
He won two decades earlier, during the probe by then-Special Counsel Kenneth Starr into the Clinton-Lewinsky-Whitewater scandals, when the Justice Department did not specify that a special counsel’s finding had to be released to the public. With full knowledge of this, Trump won when he craftily and pithily said, “Let the public see the report.” He didn’t mean it, but he could say it, because he knew that he and Barr would make the final call on what the public and Congress could see.
The president had several powerful weapons to further secure his win. One was executive privilege. This gives him the right to label anything in the report that he and Barr consider a grave security danger if made public. And since virtually the entire focus and purpose of the Mueller investigation was to get to the bottom of what Trump did or didn’t do with Russian bots in the 2016 presidential election, that inevitably meant that the pair could claim that release of any information pertaining to this could jeopardize a secret source of intelligence about Russian government activities.
In theory, there are limits to this. Courts ruled against Clinton, George W. Bush and Obama in several instances in which they tried to invoke executive privilege to shield documents from public and congressional perusal. And most famously, Nixon lost his battle to scuttle any release of the tapes that caught him red-handed telling lies about his role in the Watergate crimes.
However, the courts at the same time did not challenge the right of presidents to invoke executive privilege if they could make the case that release of documents would imperil national security or impede ongoing investigations — criminal or otherwise.
Another weapon in Trump’s hide-the-report arsenal was to argue that release of some material could compromise other criminal investigations and possible prosecutions. Then there was the grand jury shield. Mueller relied on grand juries in several cases. Rules bar any public disclosure of grand jury documents and proceedings. While the courts could rule that this information be released to Congress, the chances of that happening are slim to none. And any such ruling would almost quickly be appealed.
In fact, almost certainly any of the many maneuvers that House Democrats will use to try and pry the full report out of the White House will be appealed, thus igniting long-winded and long drawn out court battles.
Trump even won with the House’s unanimous vote for the full public release of the Mueller report. It was nonbinding. Thus, it was pure symbolism. It has absolutely no legal weight in compelling Barr to make public the full report.
Trump’s scored his biggest win, though, not in the pages of the report, or what it says or doesn’t say, or whether or not it can be released. This big win came with his cynical but masterful political ploy of selling the pitch to his loyalists and the GOP that the entire Russia probe was nothing more than a massive vindictive move by Democrats sour over their White House loss to him. He sold this line so well that Democratic leaders have now quickly backpedaled from any talk of impeachment.
Trump didn’t need to tweet or take a victory lap after Mueller finished his job. He had defeated Mueller before the game even started. n
Earl Ofari Hutchinson is an author and political analyst. He is the author of “The Russia Probe: What Did Trump Know, And When Did He Know It?” (Middle Passage Press) https://www.amazon.com/dp/B07L46G65X, and a weekly co-host of “The Al Sharpton Show” on Radio One. He is the host of the weekly “Hutchinson Report” on KPFK 90.7 FM Los Angeles and the Pacifica Network.