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

AP Photo/J. Scott Applewhite

Robert Mueller.

• Rudy Giuliani said the White House will only waive executive privilege over the special counsel Robert Mueller's findings in his obstruction case if, among other things, it is allowed to review a draft of Mueller's report before it is released.
• Legal experts say 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 will "sure as hell" object to the report being released if they are not allowed to review it beforehand.

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

At the crux of the argument is the claim that much of the information in Mueller's forthcoming report is subject to executive privilege and needs to be approved by the White House before being released to the public.

Rudy Giuliani, Trump's lead defense attorney, told Business Insider on Tuesday that the White House will only waive executive privilege if, among other things, it is 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 (DOJ) decision to allow former FBI director James Comey and former deputy FBI director Andrew McCabe to review inspector general Michael Horowitz's report on the FBI's conduct earlier this year.

"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.

AP Photo/Andrew Harnik

Deputy US Attorney General Rod Rosenstein.

But legal experts say it's unclear whether deputy attorney general Rod Rosenstein - who is overseeing Mueller and has final say on decisions related to the Russia probe - 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 using Horowitz's report as a parallel in this case may not fly because in the former, "you are talking about employees, who have certain protections that are particular to that process."

Jeffrey Cramer, a longtime 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 organization," he said. 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 those being investigated.

"But in some cases involving complex crime, particularly in the white-collar area, prosecutors may have extensive meetings with defense 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 or not to indict Trump, because current DOJ policy states a sitting president cannot be indicted.

In the end, Rosenstein will have final say on whether to allow the White House to review Mueller's 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.

However, 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 will "sure as hell" object to the report being released if they are not allowed to review it beforehand.