Graham Expects Some of Mueller Report to Stay Secret

WASHINGTON (CN) - Predicting that the public will not see the full report on Russian meddling in the 2016 U.S. elections, Senator Lindsey Graham noted Monday that material covered by executive privilege will likely be kept under wraps.

"My desire is for the public to get as much of the report as possible," said Graham, a South Carolina Republican and vocal ally of President Donald Trump.

During a 30-minute press conference late Monday morning, Graham noted that Attorney General William Barr will likely withhold material pertaining to grand jury secrecy, classified information and anything subject to executive privilege.

Graham also said it is his hope that Barr will appear before the Senate Judiciary Committee, and that he will ask Barr to appoint a special counsel to investigate "the other side of the story." 

That includes looking at whether the FBI abused the Foreign Intelligence Surveillance Act warrant process for political purposes, and whether the FBI wrongfully used the dossier compiled by former British spy Christopher Steele to obtain a FSIA warrant for former Trump associate Carter Page.

Graham wants to know as well if the FBI opened a counterintelligence investigation to spy on the Trump campaign. He noted that such investigations are supposed to protect those being targeted by a foreign power.

"How did it fail and break down here," Graham asked. "Was it a ruse to get into the Trump campaign? I don't know but I'm going to try to find out." 

Graham said he is confident that special counsel Robert Mueller completed his investigation without interference, and "that he [Mueller] was the right guy at the right time" to definitively answer the question of collusion.

"It was the Russians, it wasn't some 300-pound guy sitting on a bed somewhere," Graham said of Barr's summary of Mueller's report. "And the conclusion was confirmed without equivocation, that no one on the Trump campaign colluded with the Russians." 

This characterization omits a key disclosure by Barr on Sunday that Mueller’s report “does not exonerate” Trump of obstructing justice.

As for those already convicted in the Mueller probe, Graham urged President Trump not to pardon any of the defendants. 

“If President Trump pardoned anybody in his orbit, it would not play well,” Graham said.

Barr's 4-page summary of Mueller's report said that the probe "did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities."

As presented in his short summary, that appears to pertain only to the disinformation campaign waged by Russian company the Internet Research Agency and the hacking operations carried out by Russian intelligence officers. 

The scope of that finding pertains to the lack of a "tacit or express" agreement between the Russian government and the Trump campaign on the election disruption.

Because of that, white-collar defense attorney Harry Sandick said he will reserve judgment on collusion until more details from Mueller's report are made public.

"There are still many unanswered questions about why the Trump Administration seemed so open to meeting with Russians and so encouraging of Russia’s efforts to interfere with the election," Sandick, of the firm Patterson Belknap, said in an email.

There are also loose ends in terms of collusion that only the report can answer, he said. That includes whether Barr addressed only a conspiracy between formal Trump campaign associates and the Russian government, or if it included informal Trump advisers and nongovernment actors working on behalf of Russia.

Sandick said he has even more questions about Barr's conclusions on obstruction, particularly the notion that obstruction can only happen when an underlying crime is proved. 

"Part of the harm from obstruction of justice is that dirt is thrown in the umpire’s face, making it impossible to prove the underlying crime," Sandick said. "Barr’s rationale encourages obstruction of justice—so long as you succeed in the obstruction, the obstruction will never be punished." 

President Trump said Monday it will be up to Barr whether to release Mueller’s full report, but that doing so “wouldn’t bother me at all.”  

For Harvard Law professor Alex Whiting, getting the full report won’t change the outcome of its conclusions, which he says clear the president of criminal wrongdoing on both collusion and obstruction.

"I think he's exonerated of the criminal law charges and I think we have to move on. And I actually think that's actually a good thing," Whiting said in a phone interview. "I don't think the Mueller investigation was ever going to topple Trump, legally or politically."

The legal framework for collusion is complicated, Whiting said, because no collusion statute exists. Prosecutors could have approached it indirectly through campaign-finance or computer-fraud laws, but would need to prove violations beyond a reasonable doubt.

"What likely happened was a kind of recklessness about relations and interactions with the Russians," Whiting said. "And I mean real recklessness in terms of being naive to what the Russians were up to and being manipulated by the Russians and played by the Russians."

For Whiting, Barr's summary of Mueller's findings resolved the criminal questions and have left only political questions for the country to grapple with.

Trying to keep criminal law questions alive about collusion "is probably a fool's errand," Whiting said.

Whiting also noted that other aspects of Trump’s foreign policy, like his support for authoritarian leaders, track with his support of Russia making it difficult to prove that the latter stems from a promise to repay its attempt to sway the 2016 election in his favor.

"I think Mueller's investigation was thorough and I'm sure put to bed the criminal law questions - and I'm sure that he considered and investigated the possibility of a quid pro quo," Whiting said. "But there has to still be some kind of an agreement or understanding for there to be a quid pro quo."  

Even on the question of obstruction, which Mueller reached no conclusion about, Whiting said there is little left to argue about.

"I trust that what Mueller has teed up is a close call that's a judgment call," Whiting said. "And sure, you can argue about a judgment call, but I think it's going to be awfully hard to change the course now on the law side.".

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