The Department of Justice announced on Friday that special counsel Robert Mueller had given a final report in the Russia investigation to Attorney General William Barr. There are still major questions, though, about what that release might mean: Will Mueller’s complete findings be quickly forwarded to Congress and then the public, or will Barr put out only a summary, reflecting his and the administration’s spin on Mueller’s top-line conclusions?
During his confirmation hearings and since, Barr has suggested he might go the latter route, per his reading of the Justice Department’s regulations governing special counsels and other departmental policies and practices. Invariably, he has emphasized that DOJ’s disclosure authority is constrained by internal requirements applicable to ordinary criminal investigations, aimed at protecting prosecutorial autonomy and individual privacy.
Make no mistake: Barr’s ad nauseam repetition of claims that internal regulations will guide his decision bears all the hallmarks of floating a baseless pretext for suppressing evidence turned up by Mueller.
Congress must immediately reset the debate, by showcasing the overwhelming legal case for full access. Mueller’s investigation implicates, and was expressly established to pursue, U.S. and foreign government practices concerning counterintelligence matters. Congress has irrefutable need and authority to get at his findings, under pertinent laws and under its constitutional authority for legislation, oversight, and for determining whether to initiate impeachment proceedings.
Repeatedly, Senate and House members have demanded whether Barr will release any Mueller “report” to Congress and the public. Just as often, Barr has responded that his touchstone for disclosure will be the DOJ special counsel regulation “enacted [by] the Clinton Administration,” which he will follow “scrupulously” and “in good faith.” He has gone on to assure, encouragingly, that his “goal will be to provide as much transparency as I can.” But then he has affixed the not so encouraging proviso, “consistent with the law, including the regulations … and the Department’s longstanding practices and policies.” In the same vein, he notes that the regulation specifies that the special counsel’s report is to be “confidential,” and “handled as a confidential document, as are internal documents relating to any federal criminal investigation,” along with his further “understanding that it is Department policy and practice not to criticize individuals for conduct that does not warrant prosecution.”
In effect, Barr has channeled the debate into a narrow space where he and the Trump administration could craft a defensible rationale for withholding potentially damning evidence—defensible enough, at least, to keep shaky Republican legislators in the administration’s camp.
In fact, Barr’s construct has got the relevant law, facts, and history all wrong. Nevertheless, that construct has drawn surprisingly little questioning, even from administration critics.
In brief, here are three key points Congress should spotlight to reframe the debate:
First, what Congress needs to see is not some final conclusion of a report that, as Barr correctly recites, the DOJ regulation directs Mueller to provide, “in confidence,” to the attorney general. The function of that report is merely to “explain” the special counsel’s decisions to prosecute or not prosecute particular individuals. What Congress—and the public—needs to see for itself are the facts unearthed by Mueller’s investigation. That’s what drove the outcomes of past investigations into presidential misconduct. The brazen misconduct evidenced by the Supreme Court–ordered unveiling of President Richard Nixon’s tapes galvanized bipartisan demand for his resignation. Two and a half decades later, independent counsel Kenneth Starr’s gratuitously prurient detailing of President Bill Clinton’s Oval Office dalliances sought—unsuccessfully—to trigger a similar end to Clinton’s presidency.
Second, as House Intelligence Committee Chairman Adam Schiff and several experts, most recently, Georgetown University’s Marty Lederman, have elaborated, counterintelligence, not potential criminal wrongdoing, was the focus of Mueller’s original writ of authority. Mueller was first appointed by Deputy Attorney General Rod Rosenstein to “continue” the investigation into Russian interference in the 2016 election and any links to the Trump campaign and administration, begun by former FBI Director James Comey as part of the DOJ’s “counterintelligence mission.” A federal statute requires the department and other executive agencies “to keep the congressional intelligence committees fully and currently informed … of all intelligence activities.” Rosenstein’s directive authorized Mueller to prosecute any crimes his investigation turned up, but his core assignment, the basis for his authority, and applicable criteria for congressional access to his findings are entirely independent of and outside the purview of any disclosure restrictions prescribed for criminal investigations in the special counsel regulation.
Experts who advised Clinton’s DOJ on drafting the special counsel regulation have powerfully argued that its provisions were never intended to sanction suppression of evidence of high-level official conduct like that examined by Mueller. Former senior DOJ officials, including in particular Neal Katyal, who drafted the special counsel regulation, point to flexible language that could readily permit the release of substantially all evidence gathered by Mueller’s team. These are all valid points, but a sharper approach for Congress would be to call out Barr’s hand-wringing about asserted constraints in the regulation as the red herring that it is.
Finally, Congress’ constitutional impeachment authority unequivocally trumps any asserted executive branch–imposed constraints on the legislature’s access to Mueller’s results. To be sure, Speaker of the House Nancy Pelosi and her caucus have been reluctant to go there, for political reasons. But, contrary to what appears to be widely assumed, it would not be necessary to initiate formal impeachment proceedings in order to invoke Congress’ impeachment authority to access Mueller’s facts. Congressional investigators need only state that such information is essential for the House to determine whether to launch impeachment proceedings. The speaker, and House members, likely including at least some Republicans, can, quite credibly, frame a demand for full access as necessary for them—and the public—to evaluate whether to undertake the huge institutional and societal commitment involved in formal impeachment proceedings.
Wherever those chips fall, knowledge of the special counsel’s findings will bolster bipartisan acceptance of that process and, presumably, the decision itself.
Ultimately, a focus on counterintelligence facts—which may have nothing to do with criminal liability but are crucial to Congress’ constitutional roles—could improve Congress’ political and policymaking environment. Spotlighting Trump and his administration’s political, business, and financial connections with Russia, along with the White House’s policies and actions affecting Vladimir Putin and Russian interests, should depersonalize the debate. Once the facts are out there, it could broaden public sensitivity to tension between U.S. national security imperatives and this president’s personal interests. Only at that point will Congress have the necessary information to decide what to do next.
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