Friday, February 22, 2019

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.


  1. I expect you are absolutely correct. My problem is that the Trump haters are going to point to the non-publication of the Mueller Report, whatever it turns out to be, as evidence that Trump has something to hide.

    I want this witch hunt over, in its entirety. Keeping things under wraps, so only insiders get to see the whole thing, leaking items here and there, as insiders have been doing for two years, will only keep the well poisoned.

    I want what works best for Trump. If he's innocent, I would think transparency. Grand Jury privileges aside, my view of Mueller's use of the Grand Jury is something out of the annals of Judge Roy Bean (Walter Brennan version).

    I don't see Mueller as an honorable man. I read somewhere, don't know how true it is, that Mueller threatened to send Cohen's wife to jail because she signed the tax returns, this so he could get Cohen to open up. Moves like that are why some people hate the government.

    Mueller has spent all this time investigating Russian collusion that never happened--on the Trump side. It sure as heck seemed to be going on on the Clinton side. Mueller chose to completely ignore that, as well as the malfeasance of what looks to be like 62% of the FBI. Such behavior suggests to me that Mueller has precious little integrity (everything he pulled with Gen. Flynn only amplifies that), that he is closer to a rabid ideologue than dispassionate.

    If the powers that be do what you say they are almost legally compelled to do, well then. I can't see how Trump doesn't in that case come out on the losing end. Any summary report supplied by Barr, should it exonerate the president, is going to be dismissed, as long as significant portions of the whole enchilada remain under lock and key. I want what happened exposed, like vampires to sunlight. Anything short of that means the vampires get to live on.

    1. "the Trump haters are going to point to the non-publication of the Mueller Report, whatever it turns out to be, as evidence that Trump has something to hide."

      "I want what works best for Trump. If he's innocent, I would think transparency."

      I believe Barr understands and agrees with both of your statements--and so does Trump, for that matter. Barr is committed to working within the law, but I suspect that he will try to issue a report that is as informative as possible. He knows, as we all do, that it won't silence and haters and charlatans, but it may make a difference at the margins--people with at least some minimal degree of interest to the truth.

  2. The Intelligence Community will want most of this history to remain secret forever. In particular, the IC wants to keep secret its shenanigans involving George Papdopolous, Carter Page, Joseph Mifsud, Stefan Halper, Alexander Downer and many others.

    Also, the IC does not want anyone ever to able to study and criticize its evidence about Russian "meddling" in US elections. The problem is not IC sources and methods, but rather IC stupidity.

    1. Mike, it's a very interesting question that you raise. We'll get an answer to it soon enough.

      Barr came into government as a summer intern at the CIA, and then as an analyst. He ended up in their legal office doing Congressional liaison when Bush1 was Director. Later at DoJ he was intimately involved with national security issues at the highest levels. He's always been known as a strong defender of the Executive Branch, although he has also deferred to Congress at times.

      The question is: How does he view all this that's been going on? We know that he thinks the Clinton crimes should have been pursued. Jonathan Turley, a liberal whose constitutional views are usually worth pondering, calls Barr "one of the best lawyers I have ever known, as well as one of the most educated and circumspect." That being the case, we have to assume that he's given considerable thought--based on his past experience IN the Deep State and on his experience in private practice largely fighting AGAINST the Deep (Administrative) State--that he has views on broader matters than simply the Clinton cases. What are those views? He has to see the IC wing of the Deep State coming under partisan political control and turning against the Executive. How does he view that? Does he think reformist tinkering can deal with that adequately, or does he think the Executive, through the AG, needs to definitively regain control? I'd give a lot to know the answer.