After nearly two years, Special Counsel Robert Mueller is widely reported to be wrapping up his investigation. What comes next?
There is a lot we don’t know, but two questions loom large:
- How much of Mueller’s report, if any, will Attorney General William Barr choose to disclose?
- And how will Congress and the American people respond?
Barr should release Mueller’s report, with only minor redactions to protect sensitive information. Congress and the American people should demand no less.
‘In the Public Interest’
Special counsels have been investigating U.S. presidents and their close associates for more than 140 years, but Mueller’s investigation is the first significant one conducted under the current special counsel regulations. Those regulations were adopted in 1999 after the failed impeachment of President Bill Clinton in an attempt to correct for the perceived excesses of Independent Counsel Ken Starr.
One of those excesses was the delivery of a 450-page report to Congress full of salacious details of Clinton’s affair with White House intern Monica Lewinsky.
To avoid a repeat of this episode, the current regulations require Mueller to provide Barr “a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” It will then be up to Barr to decide whether release of the report—to Congress or the public—would “be in the public interest.”
This arrangement curtails the power of an unelected special counsel to gratuitously embarrass the president and others caught up in an investigation. It also gives the president’s hand-picked attorney general enormous discretion to determine whether a special counsel’s findings will ever see the light of day.
The drafters of the regulations were counting on political pressure to force an attorney general’s hand in cases of high public interest. Otherwise, it would look like the president had something to hide.
Will He or Won’t He?
This theory is about to be put to the test. Will Barr release the full Mueller report or something close to it?
On the one hand, Barr repeatedly voiced support for transparency at his Senate confirmation hearings: “I believe it is very important that the American people and Congress be informed of the results of the Special Counsel’s work.”
This testimony was important in securing Barr’s confirmation. His felt need to emphasize this point is some indication that the special counsel regulations are working as intended.
On the other hand, Barr repeatedly refused to commit himself to releasing the full Mueller report. He also repeatedly emphasized Justice Department regulations that might be read to restrict publication of the report.
In particular, he pointed to the DOJ’s typical refusal to explain its decisions not to bring charges. Since departmental rules prohibit Mueller from indicting a sitting president, this policy could easily be invoked to suppress any portion of Mueller’s report discussing President Donald Trump. These lawyerly caveats will give Barr wide latitude in deciding what to do with Mueller’s report when it arrives.
It is understandable that Barr sought to preserve his flexibility on this point. At the time of his Senate testimony, Barr did not even know what form Mueller’s report would take, much less what its specific contents would be.
Given the subject matter of Mueller’s investigation, there is a strong chance that the report will contain sensitive intelligence information, as well as information that could damage the reputations of private citizens caught up in the investigation. It is also likely to contain secret grand jury information, which cannot be legally disclosed without a court order.
Cause for Concern
Nevertheless, Barr’s equivocation is cause for concern. The public interest in Mueller’s report is enormous. A sitting U.S. president has been credibly accused of conspiring with a hostile foreign power to steal the election that put him in office.
Unlike an ordinary private citizen, Trump has vast resources to defend himself against any reputational harm that Mueller’s report might cause him. As president, he also wields the world’s largest megaphone. He does not require the attorney general’s protection.
In prior investigations of high public interest, the DOJ has often published comprehensive reports of its findings. The federal civil rights investigation of Michael Brown’s shooting death at the hands of police in Ferguson, Mo., is one recent example.
Another is special counsel John Danforth’s public report explaining his decision not to bring charges in connection with the FBI’s handling of a 1993 standoff with heavily armed Branch Davidians in Waco, Texas.
Barr should follow these precedents. Indeed, public interest in the results of Mueller’s investigation is vastly higher.
If Barr refuses to disclose the Mueller report, in part or in whole, Congress and the American people will face a moment of truth. Both have a number of tools at their disposal.
Congress has the power to issue subpoenas requiring Barr—or anyone else who might have a copy of the report—to turn it over to Congress. It also has the power to call Mueller and members of his team to testify, and it can ask the federal judges presiding over Mueller’s grand juries to order the release of the testimony and documentary evidence underlying Mueller’s report.
Any of these approaches could end up in court, even potentially at the U.S. Supreme Court.
But both sides have powerful incentives to reach a negotiated settlement. The outcome of such negotiations is generally decided in the court of public opinion. If large, bipartisan majorities continue to support release of the Mueller report, they are likely to get their way.
At the end of the day, it is the American people who will decide whether the president is above the law.
Andrew Coan is a professor of law at the University of Arizona and author of the forthcoming book, “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law.”
To read more from White Collar & Criminal Law News pleaseOR Request Trial