'Uncharted territory': Giuliani is demanding that Trump gets to review Mueller's report before it comes out

  • Rudy Giuliani said the White House would waive executive privilege over the special counsel Robert Mueller’s findings in his obstruction case if, among other things, it were allowed to review a draft of Mueller’s report before it is released.
  • One legal expert said that while Deputy Attorney General Rod Rosenstein, who is overseeing Mueller, is not required to share Mueller’s findings with the White House, “it’s really uncharted territory.”
  • Giuliani said President Donald Trump’s legal team would “sure as hell” object to the report being released if it is not allowed to review it beforehand.

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As the special counsel Robert Mueller prepares to complete a report about his inquiry into whether President Donald Trump obstructed justice during the Russia investigation, Trump’s lawyers have begun laying the groundwork to argue that the report should not be released to Congress or the public in the first place.

The crux of the argument is the claim that much of the information in Mueller’s report would be subject to executive privilege and would need to be approved by the White House before being released to the public.

Rudy Giuliani, Trump’s lead defence attorney, told Business Insider that the White House would waive executive privilege if, among other things, it were allowed to review a draft of Mueller’s report before it is released.

“That’s the usual courtesy that you give to a witness,” Giuliani said.

To bolster his claim, Giuliani pointed to the Department of Justice’s decision earlier this year to allow James Comey, the former FBI director, and Andrew McCabe, the former deputy FBI director, to review the inspector general Michael Horowitz’s report on the FBI’s conduct.

“The people interviewed for that report had a chance to read over the things that pertained to them,” Giuliani said. “Usually you’re given that courtesy. That’s a point we’ll raise with them and the Justice Department, no doubt.”

Trump’s legal team wants to review Mueller’s findings beforehand, Giuliani said, because it wants to release a rebuttal at the same time as Mueller’s report is released.

But legal experts say it’s unclear whether Deputy Attorney General Rod Rosenstein, who is overseeing Mueller and has the final say on decisions related to the Russia investigation, will permit Trump’s team to view the report before it’s out.

“It’s really uncharted territory,” said Alex Whiting, a former federal prosecutor in Boston and Washington, DC.

Whiting said that using Horowitz’s report as a parallel in this case may not fly because with that, “you are talking about employees, who have certain protections that are particular to that process.”

Jeffrey Cramer, a former federal prosecutor who spent 12 years at the DOJ, made a similar point.

The inspector general’s report is different “because it is an internal mechanism within an organisation,” he said, adding that there aren’t “many normal procedures to follow on this as far as the special counsel allowing the White House to review his report beforehand.”

Moreover, Whiting said, prosecutors do not typically share their findings beforehand with the subjects of their investigations.

“But in some cases involving complex crime, particularly in the white-collar area, prosecutors may have extensive meetings with defence lawyers to discuss the evidence and preliminary findings,” he said.

However, that stipulation applies mainly to cases involving indictments. Mueller’s team is not weighing whether to indict Trump, as existing DOJ policy states that a sitting president cannot be indicted.

In the end, Rosenstein will have the final say on whether to allow the White House to review the report beforehand if he chooses to release it to the public or to Congress.

Rosenstein is not required to share Mueller’s findings with the White House, and experts say they doubt the deputy attorney general would allow Trump’s team to make substantive changes to the report.

But Rosenstein “may give the White House an advance look at the report as a fairness gesture,” Cramer said. “Expect the Mueller report to be buttoned down and based on provable facts. Expect the White House response to be anything but that.”

Giuliani, for his part, said Tuesday that Trump’s team would “sure as hell” object to the report being released if it is not allowed to review it beforehand.

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