On Tuesday, Attorney General William Barr testified before a House Appropriations subcommittee, his first appearance in front of Congress since releasing his four-page summary of the principal conclusions of special counsel Robert Mueller’s investigative report.
Democrats on the committee had a lot of variations on the same questions for Barr, specifically whether he would be releasing that report in its entirety. Barr’s answers all boiled down to the same thing: He does not plan on it. Indeed, he outright said that House Judiciary Committee Chairman Jerry Nadler should take the issue to court.
While the attorney general said he would release a redacted version of the Mueller report to Congress and the public “within a week,” Barr continued to refuse any possibility that he would willingly hand over an unredacted copy of the report to Congress.
Barr principally cited the Federal Rule of Criminal Procedure 6(e) against revealing grand jury information as tying his hands on what he could reveal to Congress. But as Brianne Gorod and Ashwin Phatak of the Constitutional Accountability Center have written in Slate, district court judges have wide latitude to release that material “in connection with a judicial proceeding.” Even with a recent D.C. Circuit Court ruling that seemed to limit the release of grand jury information by judges—decided in spite of binding precedent to the opposite effect by the same appeals court—a “judicial proceeding” would still implicate Congress’ authority to weigh or begin impeachment proceedings against the president.
When Rep. Ed Case of Hawaii pointed out that Barr could go to a district court judge tomorrow and request that the full Mueller report be given to Congress for this very purpose, the attorney general stated unequivocally that he would not be doing that without legal action from Nadler.
“The chairman of the judiciary committee is free to go to court if he feels one of those exceptions is applicable,” Barr told the committee. “If the chairman believes that he’s entitled to receive it, he can move the court for it.”
This was essentially an invitation to Nadler to move forward with a subpoena his committee authorized last week and request that a district court judge clear grand jury information for release to Congress in exercising its constitutional authority to consider impeachment proceedings against the president.
Barr later hedged a bit, saying that he would hear Nadler out before requiring a subpoena after his redacted version of the report is released within a week.
“If the chairman has a good explanation of why 6(e) does not apply in his need for the information, I’m willing to listen to that,” Barr said.
He later added that he was “willing to work with the judiciary committees” in both the Senate and the House to help them determine whether he was exercising his authority to redact the Mueller report appropriately. “I would talk with them and engage with them about what additional information they feel they require and whether there’s a way of accommodating that,” he said.
But Nadler has already made clear what information he feels the committee requires, which would be the entire unredacted Mueller report as well as the materials underlying the investigation. There’s no mystery there.
Barr appears to merely be playing for time and attempting to see how little he can get away with releasing before forcing Congress into a court fight. It doesn’t matter that the legal principles have already been litigated during the Nixon impeachment inquiry and are actually quite clear (even according to the recent and possibly excessively limiting court ruling). Barr says Nadler is “free to go to court” if he wants the redaction-free version.
Nadler does want the redaction-free version, but as of Tuesday he was still saying that he didn’t want to go to court—yet. In conversations with reporters, Nadler framed this decision as tactical.
“We’re just making every effort to show the court that we’re making every effort to reach an accommodation,” Nadler said. “Because that strengthens the case for enforcement of the subpoena.
“We’ve been doing everything we could for the last weeks and weeks to try and reach an accommodation with the attorney general under which we would see the report and the underlying evidence,” he added.
According to Politico, Nadler himself noted that the binding legal precedent holds that the committee merely be considering an impeachment inquiry, rather than have begun the inquiry, to have the legal right to access the grand jury information. But he acknowledged that Barr may force his hand to launch a formal impeachment inquiry and take the matter to court if the attorney general refuses to hand over the documents voluntarily, as appears will be the case.
With the redacted version apparently less than a week away, Nadler will likely have to make that decision very soon.