Such reports have no higher status than an indictment, and an indictment handed up by a grand jury is not proof of guilt—only a charging instrument. Like an indictment, a special counsel’s report should not undercut the presumption of innocence.
That is why it is so important for the president’s legal team to be accorded an opportunity to present its own report, based on its own investigation, its own evidence, and its own knowledge of the facts. To make the rebuttal presentation fair, the Mueller report should be presented confidentially to the attorney general or his designee, as the regulations require. A copy should also be provided to the president’s legal team. The attorney general should not allow the special counsel’s report to be made public—and should take care that it’s not leaked—until the president’s team has had a chance to review and respond to it.
.. The attorney general should then issue both reports so that the media and the public have a chance to assess them in tandem. Simultaneous disclosure is permissible under the rules, and everybody would benefit if both reports are issued at the same time.
.. We can anticipate that the Mueller report, if unrebutted, will probably be quite damaging, even devastating, to the president and his associates. Virtually all reports by special and independent counsels, from Kenneth Starr’s report on Bill Clinton to Lawrence Walsh’s on the Iran-Contra scandal—have been devastating when issued without any rebuttal. This doesn’t mean that the report would survive a well-documented rebuttal. But absent a rebuttal, its impact should not be underestimated.
.. What Mr. Mueller will do, if he is wise, is simply lay out the facts and try to connect them in the most incriminating possible way. He will try to create a mosaic that makes the president look guilty of political sins, if not federal crimes.
.. It is important to remember that the witnesses whose information may serve as the basis of a report have not been subject to cross-examination. Their accounts may not be entirely credible, but the report can still rely on them. Because the report—if it does not lead to indictments—will never be subject to the truth-testing mechanisms of an adversarial trial, its conclusions should not be accepted at face value.
.. It is not difficult for a prosecutor to construct an incriminating narrative if there is no contemporaneous rebuttal. The task becomes much more difficult—and therefore the process fairer—if both sides are heard simultaneously.
Ben Brafman, the Last of the Big-Time Defense Attorneys
his skills, especially as a cross-examiner, soon earned him a more élite class of alleged miscreant.
.. His clients have included Dominique Strauss-Kahn, the former head of the International Monetary Fund; Plaxico Burress, the New York Giant; Dinesh D’Souza, the right-wing political scold; and (briefly) Michael Jackson. The latest beneficiary of his advocacy was Martin Shkreli, otherwise known as, Brafman told me, “the most hated man in the world.”
.. “I’ve had cases about murder and dismemberment, and jurors could say they could be fair. I never saw hostility like this to a defendant.”
.. Like the best trial lawyers, Brafman is a storyteller, who tries to turn his cases into narratives that jurors will read his way.
.. “The narrative has to fit, has to be consistent with the truth, so that the jury knows you’re not making up stuff,” Brafman said.
.. So I sort of promised myself I will never try this kind of case in the summer again. But I’ve got no problem for the rest of the year. What else am I going to do?”