JAN. 22, 2019 — Special Counsel Robert Mueller’s statement disputing the BuzzFeed report that President Trump directed his lawyer, Michael Cohen, to lie to Congress, raises an important question for media relations professionals, journalists and, for the matter, the general public:
Does the fact Mueller didn’t dispute previous news reports about his investigation mean they are accurate?
Federal law enforcement officials are often tight-lipped, especially while investigations are under way. Revealing too much information, for example, can make it more difficult to obtain witness cooperation or gather evidence. Sometimes it can prejudice the rights of a defendant or unfairly damage the reputation of a person. That’s why Department of Justice personnel “generally will not confirm the existence of or otherwise comment about ongoing investigations,” according to policy.
Of course, Mueller’s probe into Russia’s influence on the 2016 presidential election is no secret. Nor was the investigation into Hillary Clinton’s emails. Nonetheless, according to a longstanding unwritten practice, “the DOJ is to avoid overt law enforcement and prosecutorial activities close to an election, typically within 60 or 90 days of Election Day.”
Comey’s Slippery Slope
That didn’t stop James Comey, then FBI director, from conducting a news conference in July of 2016, criticizing Clinton’s email practices but saying the FBI would not recommend that she be prosecuted. Comey’s step onto a slippery slope in midsummer became a full-blown, crash-landing on his keester in October when he felt compelled to announce just days before the general election that the Clinton investigation had been reopened with the discovery of new emails from a separate probe.
By straying from DOJ policy, has Mueller set himself up for a similar fate? Will journalists expect Mueller to provide comment when the next sensational report about his investigation is published? Will the American public assume a “no comment” from the special counsel means the report is accurate?
To prevent this, Mueller, and his spokesperson, Peter Carr, should have included a disclaimer in their response to BuzzFeed’s report. For example, they could have said, “This office’s silence on any previous and future news reports should not be interpreted as confirmation or denial of the reporting.”
If nothing else, this language would help manage expectations. By all accounts, Mueller and Carr are sticklers for policies and procedures. So, too, are the many PR practitioners who stand behind their policies of not commenting on rumors and speculation only to deny, for example, merger and acquisition reports based on anonymous sources when the company’s stock priced takes a hit. There are exceptions to every rule.
Until his report is issued, Mueller must resist the temptation to speak out on the sensational reports that are sure to be published amid the news media’s feeding frenzy on the Trump administration. If not, and if the investigation drags in to 2020, then the special counsel’s response to last week’s BuzzFeed report could become the banana peel that lands Mueller on his backside right next to Comey.