The Defining Moment of Donald Trump's Presidency

Special Prosecutor Robert Mueller's report may be finalized as early as next week, according to a news story (see https://www.cnn.com/2019/02/20/politics/special-counsel-conclusion-announcement/index.html).  The report presumably will address crucial questions about President Trump.  Did he collude (conspire would be the legal term) with Russian authorities to undermine American democracy?  Was he a Russian intelligence asset, as one former acting FBI director has speculated (see https://www.cnn.com/2019/02/19/politics/andrew-mccabe-trump-law-enforcement/index.html)?  Did he obstruct justice or suborn perjury?  Did he violate federal campaign finance laws?  Did he engage in money laundering?  Did he violate the tax laws?  These and perhaps many other questions could be encompassed by the Mueller Report.  The answers may go a long way to defining President Trump's legacy.

Will the report be released publicly?  The President has said he'll leave that up to newly installed Attorney General William Barr.  Barr has said he wants to be as transparent as possible and will release at least a summary of the report to Congress.  But there is a view in the Justice Department that "derogatory" information about uncharged individuals should usually not be revealed, and Barr may give weight to the this practice.  If Trump is not charged because he is the current sitting President, which is what traditional Justice Department thinking could dictate, then one might wonder whether Barr would engage in legal convolutions to reason that because the President hasn't yet been charged, derogatory information about him shouldn't be released.  Such a contorted line of reasoning would defy the logic of democracy.  If the President is a crook, the people need to know it whether or not the President is charged.  But only time will tell whether Barr is inclined toward something verging on a lawyer's trickery to protect President Trump.

In addition, Barr will have to think through the issue of executive privilege, a doctrine that often shields the President's conversations with other Executive Branch personnel from disclosure.  However, executive privilege is not unlimited, and a President's general interest in confidentiality does not override the needs of the criminal justice process (see United States v. Nixon, 418 U.S. 683 (1974)(a case in which the Supreme Court enforced a subpoena issued by Watergate special prosecutor Leon Jaworski for President Nixon's tape-recordings of conversations in his office).  Moreover, it is a time-honored tradition in American law that discussions concerning a crime or fraud cannot be protected by a legal privilege.  (See Alexander v. United States, 201 U.S. 117 (1906)).  If Mueller's investigation shows that Donald Trump was engaged in criminal conduct, release of that information cannot be blocked by a privilege.

How William Barr handles the question of releasing the Mueller Report will define his legacy.  Although he has had a highly successful career, nothing he has done thus far will compare in significance to his handling of the Mueller Report.  He will be well-remembered, or not, depending on what he does with the report.

If Barr disappoints the curious members of Congress and the public, remember this.  Many, and perhaps most, of the investigations into President Trump and his doings are outside the scope of Mueller's investigation.  The U.S. Attorney's Office in Manhattan is looking into activities of Trump's former personal attorney, Michael Cohen, in relation to various Trump matters and also activities of the Trump Inaugural Committee.  The U.S. Attorney's Office in Washington, D.C. and the main Justice Department in Washington are involved in some of the cases brought by Mueller's staff, and other cases (like the Maria Butina case).  The Attorney General of New York is looking into the Trump Foundation and some of Trump's activities as a landlord.  Trump's continued ownership in the Trump International Hotel in Washington, D.C. is the subject of litigation brought by the Attorney Generals of the District of Columbia and Maryland.  As these cases progress, we will learn more and more about Donald Trump.  Even if we don't learn everything in the Mueller Report, we will eventually learn a heck of a lot about Donald Trump.  And the totality of this growing tidal wave of investigations and litigation will define Trump's legacy.  Facing, as he does, a Democratically controlled House of Representatives, he won't have any more major legislative achievements.  And his erratic wackiness on the international stage make major diplomatic accomplishments highly unlikely.  It's a sad time when a President's legacy is defined by the legal investigations into his activities.  But Donald Trump has done what he has done, and the chickens are coming home to roost.