What To Expect The Public Will See From The Mueller Report

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January 18, 2019 6:00 am
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Many details about the so-called Mueller report remain speculative: when it will be delivered, what form it will take, what level of detail it will contain.

But this week, attorney general nominee Bill Barr provided a better sense of just how much of the special counsel’s report the public will see in the likely event that he is confirmed by the GOP-controlled Senate. The short answer: not much.

Former federal prosecutors and Justice Department officials told TPM that Barr’s Tuesday testimony before the Senate Judiciary Committee contributed to their sense that there will be no juicy, detail-packed tell-all from the attorney general, and that this matter won’t be settled for many months after Mueller’s report gets turned in. Barr’s pledge to follow a narrow, conservative reading of the current Justice Department regulations for special counsels leaves unanswered questions about how transparent the process will be.

In his understanding, Barr said, he’ll receive a report from Mueller, and then write his own version of that report—scrubbed of classified, privileged or grand jury information—that he’ll turn over to Congress, who could then make it available to the public. Barr doesn’t plan to simply hand over redacted portions of the original Mueller report, and said he is uninterested in sharing damaging information about individuals who will not face indictment.

That commitment was insufficient for Democratic lawmakers, who have threatened to subpoena Mueller’s original report or subpoena Robert Mueller himself to testify. Given Barr’s stated interpretation and congressional Democrats’ insistence on getting access to the whole truth, legal experts agreed that this matter is likely destined for the courts.

“Barr said he was going to follow the regulations and give Congress as much as he can reasonably defend, and Congress is still going to sue him,” Robert Bittman, who served as deputy independent counsel under Ken Starr, told TPM. “Because Congress isn’t going to be satisfied with anything less than everything.”

Asked about reports that Mueller’s report will be completed by late February and for comment on Barr’s testimony, the special counsel’s spokesman said he could only point to the Justice Department regulations governing the Office of the Special Counsel. The Justice Department declined a request for comment.

The referenced regulations, instituted in 1999, are quite limited. Once his investigation wraps, Mueller is required only to provide the attorney general “with a confidential report explaining the prosecution or declination decisions” he has made, i.e. why he did or did not bring indictments against particular individuals. The attorney general is then tasked only with informing the chairs and ranking members of the Senate and House judiciary committees that the investigation is complete. But he also has discretion to determine “that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.”

Bittman said that the current regulations were imposed in order to avoid requiring a lengthy report like the lurid one Starr’s office released to Congress and the public in 1998 detailing Bill Clinton’s extramarital affairs.

“There was a lot of criticism because these people would spend months and months investigating things, determine were no charges warranted and then submit this report that’s generally damaging to the subject of the report and others, even though it cleared those people,” Bittman said of the previous independent counsel regulations. “Both parties were stung by this.”

“I think people have been imagining that, like the Starr report, there’s this massive 400-page report of everything that happened,” Harry Sandick, a former federal prosecutor, told TPM. “But I don’t know that the special counsel rules require Mueller to write something like that. I think it can be much shorter and less detailed, so it’s not clear to me that the final report even if it were released would have the kind of look and content that people are imagining.”

Barr made it clear that he had no interest in divulging damaging information about individuals who are not going to face charges. Referencing James Comey’s July 2016 announcement about the Hillary Clinton email investigation, Barr told the Senate Judiciary Committee, “If you’re not going to indict someone, you don’t stand up there and unload negative information about the person. That’s not the way the department does business.”

Barr also indicated that the special counsel’s report on decisions to prosecute individuals—or not—would “be treated as any other declination or prosecutive material within the department.” The Justice Department holds such memos close to the chest.

Where Barr has broad leeway is deciding what information is not protected by executive privilege, grand jury secrecy, or other confidentiality restrictions and would be “in the public interest” to release. Barr insisted he would “provide as much transparency as I can, consistent with the law.”

Democrats—and some Republicans—said that Barr’s word wasn’t good enough. After a 20-month investigation that has clouded Trump’s presidency, roiled international relations, and resulted in multiple indictments and convictions of Trump associates, only a full reckoning with the facts will satisfy the American public’s interest.

Sen. John Kennedy (R-LA) called on Barr to make Mueller’s original report public, saying, “This is an unusual circumstance and the American people need to see this report.” The Judiciary Committee’s top Democrat, Sen. Dianne Feinstein (D-CA), told Barr she’d withhold her vote for him unless he committed to doing so, saying, “The public needs to see it, and with exception of very real national security concerns, I don’t even believe there should be very much redaction.”

House Judiciary Chairman Jerold Nadler (D-NY) said on CNN Wednesday that his committee would subpoena the report or compel Mueller to testify if necessary.

“The public needs all the facts,” Nadler said, “and we can’t have it filtered through someone who may be very partisan.”

Legal experts told TPM that such litigation is all but guaranteed, but that some information will likely never reach the public. The Justice Department is particularly sensitive about sticking to policies and regulations in the wake of Comey’s unprecedented public discussion of the Clinton probe, and Federal Rule of Criminal Procedure 6(e) prevents prosecutors from disclosing any “matter occurring before the grand jury.”

“It’s all well and good for Congress to subpoena Mueller and say, ‘Tell us what you’ve found,’” Pat Cotter, a former federal prosecutor who worked under Barr during his tenure as George H.W. Bush’s attorney general, told TPM. “But Mueller would be bound by rule 6(e).”

Experts said that an information-hungry public is better served by looking at the information Mueller has laid out in his criminal indictments and court filings. More details on Trump’s activities will likely come from the Southern District of New York’s investigations into the hush money payments the Trump Organization allegedly helped coordinate on the President’s behalf and from the New York attorney general’s probe into the Trump Foundation, they said.

Nick Akerman, an assistant prosecutor on the Watergate investigation, predicted that “a lot of the information is going to come out in new indictments over the next few months, just as it’s been coming in dribs and drabs.”

But these legal experts cautioned against anticipating one comprehensive document that will answer all of the burning questions about the Trump-Russia investigation—especially any time soon.

“There’s going to be litigation,” Bittman said of the Mueller report. “It’s going to be interesting and its going to last probably for the rest of Donald Trump’s presidency.”

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