Trump did not tweet, rant, shout or finger point Special Counsel Robert Mueller the instant he delivered his report to Attorney General William Barr. Trump, in fact, said nothing. He didn’t have to. He won. He won with his three-year relentless and ruthless ramming into the public and media lexicon the words and the notions, “no collusion,” “witch hunt” and “hoax,” about the Mueller investigation.
He won when his fervid base of supporters shouted, screamed and stomped “lock her up” (the “her” being Hillary Clinton). He won when he fired Attorney General William 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, with only a slight guarded refinement, 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 when two decades earlier, during the probe by the Special Counsel Kenneth Starr into the Clinton-Lewinsky-Whitewater scandals, the Justice Department did not specify that a Special Counsel’s finding had to be released to the public. With full knowledge of this, he won when he craftily and pithily said, “let the public see the report.” He didn’t mean it, but he could say it, because again he knew that he and Barr would make the final call on what the public and Congress could see.
He had several powerful weapons to further secure his win. One is executive privilege. This gives him the right to label anything in the report that he and Barr consider a danger to compromise secrets, investigations or classified material as 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, Bush Jr. and Obama in several instances when 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 in red handed 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 is to argue that the release of some material could compromise other criminal investigations and possible prosecutions. Then there’s the grand jury shield. Mueller did rely on grand juries in several cases. Rules bar any public disclosure of grand jury documents and proceedings to the public. While the courts could rule that this information be released to Congress, the chances of that are slim to none. And any such ruling would almost quickly be appealed.
In fact, almost certainly any of the piles of maneuvers that House Democrats will use to try to pry the full report and much more out of the White House will be appealed. This would ignite a long-winded and long drawn-out court battle.
Trump even won with the House’s unanimous vote for the full public release of the Mueller report. It was non-binding. Thus, it is pure symbolism. It has absolutely no legal weight in compelling Barr to make the full report public.
Trump scored his biggest win, though, not in the pages of the report, or what it says or doesn’t say, or whether it can be released or not. This big win came with his cynical, crass, but masterful political ploy of selling the pitch to millions of his loyalists and the GOP that the entire Russia probe was nothing more than a massive vindictive more to get him out by Democrats sour over their White House loss to him. He sold this line so well that Democratic leaders have now backpedaled fast from any talk of impeachment. Trump didn’t need to tweet or take a victory lap after Mueller finished his job. He had already won the race to defeat Mueller before the race even started.
Earl Ofari Hutchinson is an author and political analyst.
