Two separate criminal cases playing out in Washington, D.C., could determine how much Congress and the public learn about what’s concealed in special counsel Robert Mueller’s 448-page report.
One federal judge has already ordered some redacted information to be made public, ruling last week that information Mr. Mueller developed on former National Security Adviser Michael Flynn should be revealed ahead of his sentencing on charges of lying to investigators.
Separately, another judge is mulling a request from former Trump associate Roger Stone to access blacked-out sections of the Mueller report he says are crucial his legal defense.
“These cases, collectively, could have a big impact on what we know of the Trump campaign’s possible collaboration with the Russians and attempts to obstruct justice by influencing the course of potential cooperation with the investigation,” said Claire Finkelstein, Director of the Center for Ethics and the Rule of Law at University of Pennsylvania Law School. “It might be a few sentences or a few paragraphs that are redacted, but they are critical sentences and paragraphs.”
Mr. Mueller, in his report, cleared the Trump campaign of conspiring with Russia and declined to make a call on whether the president obstructed justice. He instead offered nearly a dozen instances of presidential behavior that raised potential flags.
A court filing last week detailed yet another anomaly when prosecutors disclosed Flynn said people with ties to the Trump administration and Congress contacted him to obstruct his cooperation with the government. It is believed to be the first public acknowledgment that someone linked to Mr. Trump’s allies is suspected of interfering with the Russia probe.
More revelations could come. U.S. District Judge Emmet G. Sullivan demanded the government make public the transcripts to two sensitive phone calls involving Flynn. Judge Sullivan is also considering releasing audio recordings of those calls.
In one November 2017 call, an unidentified personal attorney for Mr. Trump asks Flynn to give a heads up if he plans to tell Mr. Mueller damaging information about the president. The attorney also tells Flynn the president is fond of him.
The second call is one Flynn placed to the then-Russian ambassador in late 2016. He later pleaded guilty to lying to investigators about the call.
So far only scant details about either conversation have been disclosed in the Mueller report, leaving analysts eager for whatever else they can learn.
“Just a name or a word or sentence that is redacted could be quite revealing,” said Steven Schwinn, a professor at John Marshall School of Law in Chicago.
In the Stone case, Judge Amy Berman Jackson demanded prosecutors give her unredacted portions of the Mueller report involving Mr. Stone. She will review the material to decide whether or not to turn it over to Mr. Stone’s attorneys before his November trial.
Prosecutors have opposed Mr. Stone’s request, saying the Mueller report is an internal prosecution memo, rather than evidence to be shared with the defense.
They have not objected to Judge Jackson’s request to review the material herself, though.
If she does approve sharing the information with Mr. Stone’s team, legal experts expect it will quickly find its way into public view. That could be problematic for the prosecution, said Andrew Leipold, a law professor at the University of Illinois.
“Once the judge puts the redactions in the hands of the defense, it is essentially public and they can use it in whatever way they see fit,” he said. “It is possible the defense will release selectively favorable portions to minimize the harm done. That’s the problem when only a few people know about something and some of those people have an incentive to shape public opinion.”
The cases could test Mr. Trump himself, who may have to decide whether to claim a privilege to try to prevent release.
“The president has shown a willingness to invoke executive privilege in many cases where it doesn’t exactly apply,” said Paul Rosenzweig, an expert on executive privilege and a senior fellow that the R Street Institute. “Executive privilege doesn’t cover communications between people inside the executive branch and people outside the executive branch as Flynn was at the time of Trump’s attorney’s call. There is no good argument here for executive privilege.”
In the Stone case, Mr. Trump’s executive privilege claim could pit the president’s need for secrecy against Mr. Stone’s Sixth Amendment right to defend himself. Courts tend to be deferential to presidents, especially when they invoke national security interests, but that will have to be matched up against Mr. Stone’s Sixth Amendment right to mount a strong legal defense.
“It is impossible to say where this would go because we don’t have a Supreme Court ruling on this,” Mr. Schwinn said. “When a president invokes privilege without stating a specific reason that is not going to outweigh the defendant’s due process rights. But if the president invokes national security the courts would really take that seriously. Whether it would outweigh Mr. Stone’s constitutional rights depends on what the evidence is.”
Sections in the Mueller report detailing the activities of Flynn and Mr. Stone are largely concealed because it could cause harm to ongoing investigations. The legal bar to release that material is much lower than other reasons for redactions such as confidential grand jury material, which is shielded under federal law.
Copyright © 2019 The Washington Times, LLC. Click here for reprint permission.