Can Barr Simply Release Mueller's Report?

I can't recommend highly enough Victoria Toensing's article today: Why Mueller's report (no matter how much Dems clamor for it) must be kept confidential. Recall that Bill Barr's confirmation hearing testimony regarding release of Mueller's report was studiedly non-committal. On the one hand, he forthrightly stated that he favored releasing as much as possible but, on the other hand, he rightly refused to commit himself ...

Barr said he envisions two reports, and only one for congressional and public consumption. 

Barr has said he takes seriously the “shall be confidential” part of the regulations governing Mueller’s report. He has noted that department protocol says internal memos explaining charging decisions should not be released. 

During his confirmation hearing, Barr said that he will draft, after Mueller turns in his report, a second one for the chairman and ranking members of the House and Senate Judiciary committees. But here again, the regulations provide little guidance for what such a report would say. 

The attorney general is required only to say the investigation has concluded and describe or explain any times when he or Rosenstein decided an action Mueller proposed “was so inappropriate or unwarranted” that it should not be pursued.

Barr indicated that he expects to use his report to share the results of Mueller’s investigation with the public, which the regulations allow him to do. But he hedged on specifics and said his plans could change after speaking with Mueller and Rosenstein.

What Toensing does, brilliantly, is explain what's at play here.

First of all, there has been a fair amount of loose talk in the media about Mueller's "report to Congress." Ain't no such beast. That's how the old Independent Counsel statute worked, but the Independent Counsel statute expired and was replaced with the current Special Counsel regulations. The IC reporting requirement was always constitutionally problematic, because it blurred the fundamental "separation of powers" structure of the Constitution. As Toensing explains (and I alluded to here), the Special Counsel regulations correct that problem:

Those regulations corrected one of the key problems with the old law: specifying the branch of government that controls the investigation. The regulations make clear the position is under the executive branch. Mueller reports directly to the attorney general. 

The regulations also changed the nature of any report by the special counsel. They state that the attorney general may release the report if he or she determines doing so is “in the public interest.” However, such release must “comply with applicable legal restrictions.”

There are two important issues at stake when we consider "applicable legal restrictions." One is executive privilege, and the other is Grand Jury secrecy. Both of these issues touch on fundamental aspects of our constitutional system.

Consider executive privilege. In the course of Team Mueller's "probe" the White House has voluntarily turned over vast amounts of documentation of all sorts. If Barr were to release any such material, what would be the effect going forward? Toensing has an answer:

The Trump legal team turned over all documents the Mueller team requested under an agreement that doing so did not waive executive privilege. The basis for this agreement is that because the special counsel operates within the executive branch the White House was not providing material to another branch of government.

There would be grave policy implications for future presidents if privileged material provided by a White House during an investigation is made public. If such cooperation waives the president’s ability to assert executive privilege, no future White House will ever do so.

In addition, of course, there would be a question of fundamental fairness. In all those millions (?) of pages of documentation there may surely be items that could prove embarrassing--whether to the President or to other persons. Voluntary cooperation with any investigation should not lightly disregard such conceptions of fairness.

If anything, the Grand Jury issue is even more intractable. While the White House voluntarily provided mountains of documentation, Team Mueller also relied extensively on the Grand Jury to obtain documents as well as testimony from other witnesses. As Toensing explains:

Federal Rule of Criminal Procedure 6(e) prohibits public release of documents and testimony presented to the grand jury. 

Mueller and his team relied heavily on grand jury evidence in their investigation. Only a court order can overrule 6(e)’s mandate.

Recall, again, what John Dowd said about that:

DOWD: The idea that you would take that information and make it public, you know, violates the whole concept of the grand jury. What's the grand jury for? To protect the innocent. ... Does that ever get reported? No.

Nor, as Toensing points out, will redacting solve any of these problems. Redactions inevitably lead to speculation, which may or may not be groundless. That's hardly fair.

So in the end, the best solution appears to be for Barr to write his own report to Congress summarizing--perhaps in very summary fashion--the results of Team Mueller's efforts.