Understanding the White House Secrecy Argument

Mueller Bucked the Plan. So They're Mad.
WASHINGTON, DC - MAY 1: U.S. Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019 in Washington, DC. Barr testified on the Justice Department's investigation of Russian interferen... WASHINGTON, DC - MAY 1: U.S. Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019 in Washington, DC. Barr testified on the Justice Department's investigation of Russian interference with the 2016 presidential election. (Photo by Win McNamee/Getty Images) MORE LESS
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May 2, 2019 3:16 pm
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There’s a key point to understand about this White House letter from Emmet Flood to Bill Barr about the Mueller Report. There’s a clear and consistent, if deeply wrong, through line connecting all of this. Most people – polls show this – have seen Mueller’s probe as something like an Independent Counsel investigation. It’s not simply a criminal probe. It’s a public exercise to determine – apart from the possible direct influence of the President and any conflicted appointees – what happened in a question of great and legitimate public concern: Did the President conspire with a foreign government during the 2016 election and did he obstruct justice or abuse his office during the subsequent investigation?

Many have rightly argued that this is such a critical series of questions that it should also have been investigated by an independent commission or a joint committee of Congress as has been done many times in the past. The purpose of those exercises is disclosure and accountability – in many ways greater values than criminal punishment. The existence of the Mueller probe has frequently been put forward as a reason why those those other sorts of inquiries don’t need to occur. They’re not needed because Mueller will get to the bottom of whatever happened.

The White House’s argument is that this was no different from any other criminal inquiry. There’s an indictment or there’s not. That’s all there is to it. Any explanation of what the investigation found is illegitimate. To the White House, the Special Counsel’s Office had no right to explain to the public what happened. The whole Report itself is illegitimate.

The Report is clear. The investigators thought President Trump did obstruct justice. But they did not believe they were allowed to bring an indictment or publicly accuse him. They declined to reach a judgement because indictment was barred by DOJ policy and exoneration was barred by the facts. They chose to leave the matter to Congress and the public. The White House wanted everything to remain secret. Mueller messed that up.

Now, it’s true that Mueller could have gone the route Flood and Barr hoped for, really not write any more than a memo to Barr explaining their prosecution decisions. But he was in no way limited to that. Producing the kind of report he produced was entirely within his purview. Emmet Flood and the White House wanted any public disclosure to be blocked off by the DOJ rule against indicting a sitting President. They are understandably upset with Mueller because he complicated their goal of keeping the President’s crimes secret.

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