Presently, we are in an interlude. The Mueller investigation is over, but Congress and the public have not yet seen the special counsel’s report. Around 5:00pm on Friday, March 22nd, Attorney General William Barr sent a letter to the House and Senate Judiciary Committees, notifying them that Special Counsel Robert Mueller had concluded his investigation and submitted a report to the Attorney General. Over the past week, this asymmetry of information has invited speculation about the conclusions of the report, the inferences which can be drawn, and what it all means for the President. But, focus on the content of the report is misplaced because judgements about the its conclusions are nearly impossible to make without reading it. Rather, the coming weeks have set up an important fight over access to the report between the Department of Justice (DOJ) and Congress, which will test the integrity of and public confidence in these institutions. There is a sense on both sides of the aisle that the other is asking for too much. Republicans argue that Congressional demands for information are part of an ongoing witch hunt. Some Democrats are deeply suspicious of the Attorney General’s refusal to release the report to Congress before reviewing it entirely. To be clear, these are not equally serious criticisms made in good faith, nevertheless they are both incorrect. It is both entirely correct for the Attorney General to decline to publish any of the report without reviewing it and for Congress to demand as much information as it thinks necessary.
There are several reasons the Attorney General must review the report before releasing it to Congress or the public. The report is not primarily intended for the public, it is intended for the Attorney General. Federal regulations explicitly say that the Special Counsel must produce a report for the Attorney General. It is then the Attorney General’s decision to publish the report if they “determine that the public release … would be in the public interest.” In his March 22nd letter, Barr wrote that he is “mindful of the public interest in this matter” and that his “goal and intent is to release as much of the Special Counsel’s report as [he] can, consistent with the law, consistent with applicable law, regulations, and Departmental policy.” While the second part of this statement appears to carve out broad exceptions to publication, the statement as a whole leads me to believe that one can trust (but verify) that Barr will make a good-faith effort at publication. Moreover, the relevant law, regulations and policy are clear. They govern classification of intelligence sources and methods, grand jury information, and information related to ongoing DOJ investigations. It is unlikely that Barr will decline to publish information which cannot be explained by one of these categories.
Briefly, it is worth explaining why classified intelligence and grand jury information should not be released arbitrarily. Classification exists to protect, among other things, intelligence sources and methods which are not in the public interest to declassify. Mueller’s report likely relies on much of this, since his investigation grew out of an FBI counterintelligence investigation. Some may argue that declassification is necessary to substantiate and ensure public confidence in the conclusions of the report. However, exposing certain intelligence sources and methods could threaten ongoing operations, other investigations, place human sources (confidential informants and cooperating witnesses) at risk, and render technical sources and methods worthless going forward. As a general matter, the government will avoid compromising such sources and methods in order to substantiate public statements, seeing exposure as doing more harm than good to the public interest.
The limitations on publishing grand jury information are less discretionary. It would be a felony for the Attorney General to turn over information obtained through a grand jury investigation without a court authorization, even if members of Congress were the recipients. Specifically, the grand jury rules prohibit disclosure of information “unrelated to actual charges… This is to guard against the government releasing derogatory things about people for political purposes.” Barr sees this information (referred to as 6(e) information) as the primary obstacle to publication and reason for his review.
However, Congress’ desire to obtain and review the report is similarly legitimate. The Mueller investigation was into matters of the most serious public concern: whether a foreign power interfered with an American election, whether individuals close to the president conspired with a foreign power to do so, and whether the President sought to obstruct justice on their behalf. Therefore, it is reasonable for the public to expect an explanation of the findings and an opportunity to read the Special Counsel’s report, and for members of Congress to demand it on their behalf. Moreover, Congress is charged with oversight of the executive branch, a task which might be particularly fruitful based on the contents of the Mueller report.
As a result, the coming weeks will be a test of both the DOJ and Congress’ ability to navigate complex legal and political questions ethically. In this process, the public can reasonably only have two demands. We expect that the Attorney General will conduct himself professionally by ensuring that any decision to publish or redact parts of the report is done in accordance with the law and is immune to any political pressure from the President. From what we know about Barr, he takes his professional obligations to the DOJ’s institutional standing and culture seriously, so we can generally be confident he will do so.
However, during this administration, public confidence in the ability of political appointees to conduct their duties apolitically is hard to come by, so we also expect to be able to verify the Attorney General’s conduct — enter Congress. Congress will receive a redacted report but, crucially, Congressional Democrats have demanded to see the unredacted report. This poses some complications, overcoming which will require trust. Congressional Democrats will not get an unredacted report without a victory in court which grants an exception to the grand jury rules, and DOJ may refuse to turn over the information even if a court orders it. In such a scenario, one way Congress will gain an understanding of the material is through testimony and closed-door, high-level meetings between Barr and members of Congress. In them, perhaps, Barr could describe the material with enough abstraction to avoid violating the grand jury rules, but with enough specificity to give members of Congress a sense of the redacted content such that they are confident in the report’s conclusions. This would require members of Congress to trust in the institution and honesty of the Department of Justice and the Attorney General. This is not a certain outcome, maybe not even a possible one. However, without a similar way to build confidence in Congress that the conclusions of the report are the honest product of the special counsel, the present national drama will never end.
Consequently, our focus should not be on the President’s exoneration or near conviction — those are questions for a later time. The coming weeks are about Congress, DOJ, and the rule of law.
Roosevelt @ Michigan State University 