Sign up for the THINK newsletter

You have been successfully added to our newsletter.

Get fresh opinions, sharp analyses and powerful essays delivered to your inbox.

Jill Wine-Banks and Gerald Goldman America needs to know what Mueller knows about Trump. Here's how that could happen (legally).

Whether Trump is guilty or innocent, the public and its elected officials deserve to know the truth.
Image: Robert Mueller
FBI Director Robert Mueller testifies during a hearing before the Senate Judiciary Committee.Alex Wong / Getty Images file
Get the Think newsletter.

During Watergate, as assistant Watergate special prosecutors, we thought a lot about why the public and Congress needed to know what we knew about President Richard Nixon. We found ways to reveal the facts back then that special counsel Robert Mueller can use now along with some additional ones available to him under new rules.

Whether President Donald Trump is guilty or innocent of conspiring to violate U.S. law, obstructing justice, or covering up something else entirely, the public and its elected officials deserve to know the truth. If he is guilty of criminal activity, there is the possibility he could misuse his executive powers with very grave consequences. Indeed, this was a concern we had as Nixon's political support crumpled. If Trump feels trapped as Nixon did, who knows what he could do?

Without facts, Congress cannot make informed decisions about Trump’s fitness for office and voters cannot make informed decisions at the ballot box.

Without facts, Congress cannot make informed decisions about Trump’s fitness for office and voters cannot make informed decisions at the ballot box.

We believe that Mueller understands these truths. As reported in The Washington Post earlier in April, he may already be considering providing seriatim reports on various aspects of the investigation to Deputy Attorney General Rod Rosenstein. We think the regulations governing Mueller allow that serial reporting.

If the Post’s sources are correct, public disclosure of his findings could commence earlier than the conclusion of all his work. That is a good thing here where speed is a good thing for the nation — whatever the facts show about Trump’s guilt or innocence. Public knowledge of the Mueller probe’s evidence is especially important now because we simply cannot count on the current Republican-led Congress to take the necessary actions to protect the integrity of the 2018 elections or to investigate the president’s conduct.

So what options does Mueller have?

According to the special counsel regulations, Mueller can make a confidential report to Rosenstein detailing his decisions to pursue or close any part of his investigation. Rosenstein then must pass along an explanation of those decisions to the chairs and ranking minority members of the House and Senate Judiciary Committees. The regulations set no limitations on the level of detail included in Rosenstein’s report or on the legislators' use or disclosure of the information they receive. That means the substance of any Mueller report could be released to the public.

Further, if Mueller and Rosenstein determine that "governmental action outside the criminal justice system might be appropriate" — such as impeachment hearings — they are authorized by the same regulations to choose an "appropriate component" of the Justice Department "to take any necessary action." This could include sending Mueller's report to both Judiciary Committee leaders and other legislators.

Importantly, the regulations also authorize Rosenstein to publicly release Mueller's report if he determines that it would be in the public interest (and in compliance with applicable legal restrictions protecting classified material and the oft-cited “Rule 6” limiting disclosure of matters occurring before the grand jury).

Addressing the issue of classified material in Mueller's reports, the problem can be easily solved by redaction.

In addition to the reporting allowed by the rules governing this special counsel, Mueller has two additional avenues for the dissemination of his findings and conclusions.

As to the Rule 6 question, we would argue that the grand jury secrecy rule has no bearing here because an exception permits disclosure to appropriate federal officials of grand jury matters involving “grave hostile acts of a foreign power or its agent ... for the purpose of preventing or responding to such threats or activities.” This capacious language allows Mueller’s report to be released to Congressional members, who in turn could potentially release details to the public as necessary for performance of their duties.

In addition to the reporting allowed by the rules governing this special counsel, Mueller has two additional avenues for the dissemination of his findings and conclusions.

One avenue, if the evidence is adverse to Trump, is to recommend indictment of the president.

There are hurdles to indictment. First, the Department of Justice’s Office of Legal Counsel has argued that a sitting president cannot be indicted. Many others (including us) find fault with that position and believe indictment is constitutionally proper. Under this view, Mueller could advise a grand jury to return a "speaking" indictment that sets out for all to read exactly what the president has done and why it violates U.S. law.

There is one other and less politically less aggressive means of informing the public. It is the course effectively utilized by the Watergate special prosecutor Leon Jaworski.

Another impediment to indictment is that, no matter how impartially Mueller performs his duties, indictment almost certainly would provoke impassioned protest from Trump's base. Some supporters would likely argue that the 2016 election is being unfairly upended. Such political considerations may cause Mueller to decide against indictment, just as they influenced our office’s decision not to indict Nixon during Watergate.

There is one other and less politically aggressive means of informing the public. It is the course effectively utilized by the Watergate special prosecutor Leon Jaworski and avoids the pitfalls of the other mechanisms. He recommended that the grand jury use its inherent authority to issue a report creating a roadmap of evidence for the House Judiciary Committee to use in its consideration of whether Nixon should be impeached.

The Watergate grand jury acted on that recommendation. A briefcase of evidence was delivered to the House Judiciary Committee, which then voted articles of impeachment against Nixon. The federal courts upheld the transmittal to Congress.

In sum, whether Mueller uses the reporting mechanism of the special counsel regulations, an indictment, or a grand jury report, it is of vital importance that his findings and conclusions reach the public and Congress as promptly as possible. It is fortunate that Mueller seems to understand that goal — and that he has a variety of options to achieve it.

Jill Wine-Banks was an organized crime prosecutor at the U.S. Department of Justice in Washington before becoming one of the three Assistant Watergate Special Prosecutors. She was later named General Counsel of the U.S. Army by President Jimmy Carter. She is a MSNBC Contributor and Legal Analyst.

Gerald Goldman clerked for U.S. Supreme Court Justice William J. Brennan, Jr. before being named to the Watergate Special Prosecution Force as an Assistant Special Prosecutor. He is currently a volunteer attorney with the Natural Resources Defense Council.

Get the Think newsletter.
MORE FROM think