As the Watergate scandal deepened in November 1973, President Richard Nixon declared, “People have got to know whether or not their president is a crook.” Nixon was right. As John Dingell wrote in his deathbed farewell letter to the American people, in our system of government U.S. officials do not “have” power but instead “hold” power in trust for the electorate they serve. Whatever special counsel Robert Mueller finds, the American people, and their congressional representatives, have a right to know whether they can continue to entrust President Donald Trump with the power of the presidency.
In the Russia investigation, the need for public transparency is at its apex—especially the underlying evidence and factual findings.
That said, additional dynamics will shape the coming tussle between Congress and the administration. First, the executive branch may have legitimate confidentiality interests in the material, some of which might be appropriately kept from public disclosure—but that does not mean that information should be kept from Congress. Second, the White House will also likely claim confidentiality interests that go far beyond a good-faith, proper interpretation of the legal doctrines and investigative context.
As we look toward the Mueller investigation’s endgame, we believe some issues concerning the transparency of Mueller’s findings have not been appreciated in commentary to date.
1. Grand jury secrecy will not cover a great amount of the evidence Mueller collected.
Many commentators assume that a central concern with the disclosure of Mueller’s findings involves the secrecy generally afforded to grand jury information. Those discussions boil down to considerations of whether the normal protections afforded to such grand jury information might be overcome, for example, by a congressional subpoena. That issue is complicated, and Congress may ultimately prevail. But short of that, grand jury secrecy won’t cover a lot of the most important evidence.
For example, the FBI’s interview memoranda—called “302s” due to their federal form number, “FD 302”—are not covered by grand jury secrecy rules unless they are transformed by their use before the grand jury. As one former federal prosecutor observed in a law review article:
The summary of an interview by a federal agent with a person who also testifies before the grand jury is not … automatically and necessarily transformed into a matter occurring before the grand jury. If the summary of the interview is itself read at a later time to the grand jury, however, the Third Circuit has suggested that the summary itself, as well as the transcript of the reading of the summary are matters occurring before the grand jury.
In addition, the courts’ prevailing view of grand jury secrecy rules would not apply to a congressional subpoena directed at documents that also happened to have been subpoenaed by the grand jury.
But before even thinking about grand jury secrecy rules, what if the special counsel’s office conducted an entire thread of the investigation without resorting to a grand jury?
That seems to be the case with the part of the investigation focused on President Trump’s potential obstruction of justice and abuse of power while in office. Matthew Miller reported that none of the witnesses who have spoken to the special counsel’s office about obstruction have gone before the grand jury. If this is accurate, grand jury secrecy rules would not prevent Mueller from making public his report on the president’s efforts to hamper the investigation. At a minimum, it denies the attorney general a reason to decline the release of this body of information on grand jury secrecy grounds.
2. Public hearings are even more warranted if no charges are filed against Trump campaign associates.
If no criminal charges are filed against Trump campaign associates for conspiring directly with Russia or WikiLeaks, there may be an even stronger ground for holding public hearings. The absence of any pending criminal prosecutions could help free up Mueller—and other members of the special counsel’s office and witnesses like George Nader and Michael Cohen—to speak publicly without concerns that congressional hearings might interfere with ongoing criminal investigations.
3. It is far from clear that the DOJ’s policy of not disclosing derogatory information about people who aren’t indicted applies to much of the Mueller investigation.
The Justice Department is likely poised to make the claim that, in accord with long-standing department policy, it won’t release derogatory information about people whom the prosecutors do not indict in the course of an investigation. As recently as Monday, Deputy Attorney General Rod Rosenstein publicly affirmed his support for this policy in words that the Washington Post called “an ominous sign for those hoping the department will soon disclose the closely held details of special counsel Robert S. Mueller III’s probe.” Rosenstein said, “The guidance I always gave my prosecutors and the agents that I worked with during my tenure on the front lines of law enforcement were if we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.”
But that Justice Department policy applies to criminal investigations. It is not as clear how those interests apply in a counterintelligence context. Mueller’s mandate is primarily a counterintelligence one focused on “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The special counsel is then, as a secondary matter, authorized to prosecute federal crimes discovered in the course of that investigation. In other words, Mueller’s core mandate is focused on finding out if there is derogatory information about individuals associated with the Trump campaign, regardless of whether their conduct amounts to crime. The fact that campaign members may have not crossed the line of criminality, or may have committed crimes but not in a manner provable beyond a reasonable doubt, should not shield them from exposure in a public report for corruptly working with a foreign adversary to undermine an American election—if that’s what happened.
A critic might say that counterintelligence investigations are even more secret than criminal investigations. That may be true, but the principal reasons for keeping counterintelligence reports secret are generally quite different than the criminal context, and don’t apply easily to the special counsel investigation. The type of information that is usually still kept secret even when the rest of an intelligence report goes public is also not like the privacy and reputational concerns at work in criminal investigations.
The primary basis for not disclosing information in a counterintelligence context like the special counsel’s Russia investigation is protection of sources and methods, or because of other genuine national security concerns (such as telling the Russians how much we know). The specific reputational concerns that arise in the criminal law context do not apply as directly, completely, or as consistently to these other investigatory domains—whether that’s an intelligence investigation conducted by the executive branch or an investigation conducted by Congress.
And yes, we as a nation have been here before. The Justice Department’s policy on withholding derogatory information did not stop Congress from obtaining FBI and intelligence community reports on Chinese intelligence efforts to curry favor with cash infusions to the Democratic Party in the 1996 election cycle. Under the chairmanship of Tennessee Sen. Fred Thompson, the Senate Government Affairs Committee obtained intelligence and law enforcement reports, including information from the FBI’s counterintelligence investigation. While the administration restricted public release of information to protect sources and methods of intelligence collection, it did not appear to withhold information provided by witnesses who were not indicted. For example, an FBI 302 of an interview with Vice President Al Gore ended up in the public domain after it was produced to Congress. (Andy was in the vice president’s counsel’s office at the time). Similarly, the department provided the House with the 302s in the investigation into Hillary Clinton’s email practices shortly after the FBI investigation concluded. In short, in its perpetual struggles with the executive, Congress has often been able to obtain FBI investigatory documents, including the names and activities of specific people under investigation, notwithstanding the department policy on derogatory information.
In the final analysis, these matters concern not only what the Justice Department hands Congress but also what the department makes directly available to the public.
The natural remedy for conduct designed to undermine democratic elections, and public confidence in them, is disclosure of that nefarious conduct to the democratic citizenry victimized by it. If the information concerning what certain Americans did in concert with a foreign adversary is derogatory, well, that’s exactly what Mueller was charged to find out, and what the public has a right to know.
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