Legal experts say Attorney General nominee William P. Barr was right not to promise a public release of the full report that special counsel Robert Mueller will eventually deliver.
Not only are the federal rules surrounding the special counsel’s work product vague, but, depending on what Mr. Mueller includes in his report, it could be against the law to release it in full, should it contain information gleaned in grand jury proceedings.
That’s likely to frustrate Democratic senators, who last week said their support for Mr. Barr is contingent, in part, on his agreeing to let the country see Mr. Mueller’s unvarnished work. But it’s the right call legally, said Jonathan Turley, who teaches law at George Washington University and who testified in support of Mr. Barr.
“The ironic element of the hearing is the senators who were pressing Barr on whether he would be an ethical attorney general were also pressing him to give a thoroughly unethical pledge to release an unseen report,” he said. “He wasn’t evading, he literally can go no further under federal law.”
Democrats and some Republicans repeatedly pressed Mr. Barr during a full-day hearing before the Senate Judiciary Committee on how he plans to approach the Mueller probe into Russian election meddling and whether President Trump or his campaign associates were involved in wrongdoing.
Mr. Barr promised to provide “as much transparency as I can,” but cited Justice Department regulations he said generally shield the work from full disclosure. At one point suggested he might write his own report to make public what he thought appropriate from Mr. Mueller’s work, but later admitted he wasn’t sure how the reports “would fit together.”
“I think it’s accurate to say that Mr. Barr did hedge, but that’s a complaint about the law and the limits of the law, not about him,” said Paul Rosenzweig, a former senior counsel to independent counsel Kenneth Starr now working as a senior fellow at the nonprofit R Street Institute. “He could have said, ’I’ll give it out no matter what,’ but that would be wrong.”
A court order would be required to release any confidential information to Congress, but the rules for what happens after that are murky.
“The question for a court to decide is if Congress wants to disclose confidential materials to the American people, would there be redactions,” said Robert Ray, who succeed Mr. Starr as independent counsel in the Whitewater investigation into the Clintons. “It is a delicate issue that requires measure and careful thought.”
A similar situation unfolded in 1974 when Watergate special counsel Leon Jaworski sought to provide such materials to the House Judiciary Committee mulling the impeachment of President Richard Nixon. Jaworski secured the approval of then-Chief Judge John J. Sirica of the U.S. District Court for the District of Columbia to transmit grand jury information under seal to the committee.
Judge Sirica ruled grand jury materials can be disclosed in certain judiciary proceedings and concluded impeachment is akin to such a proceeding because it is a trial in the Senate overseen by the Chief Justice of the Supreme Court.
That Watergate report titled “Jaworski Road Map” was only released to the public late last year.
This time around, Mr. Turley said both the executive branch and Congress should try to avoid escalating the fight into a legal one, saying it could dent both sides in the public’s mind.
“If this report is handled the same way as the government shutdown, both sides will lose,” he said. “It’s in everyone’s interest to reach a reasonable compromise.”
But even if both sides avoid a legal fight, the Democrats in Congress likely will find ways to make public any damaging information about the president or his associates that might be included in the report.
“If Mr. Barr says he is not going to release the transcript of Michael Cohen’s grand jury investigation, Congress has the authority to subpoena him and ask him themselves,” Mr. Rosenzweig said.
Sen. Lindsey Graham, the new chairman of the Judiciary Committee, predicted Mr. Barr won’t ever get the chance to wrestle with the decision.
“The report will be leaked before he gets it,” the South Carolina Republican predicted.
Andrew Leipold, a law professor at the University of Illinois and a former member of Mr. Starr’s team, said there’s another possibility Mr. Barr might want to avoid: a slow drip of partial leaks.
“It makes me smile when I listen to people say the report is going to remain confidential,” he said. “There are enough people itching to get at the information that if there is anything damaging to the president, it’s going to find its way out whatever the laws are. It’s better to release the complete information than deal with a new leak every day.”
Justice Department regulations grant the attorney general full discretion within the law over how much of Mr. Mueller’s findings can be released, but they are vague and can be changed at the attorney general’s discretion.
The attorney general is not required to issue a final report and there is no mechanism for how a report should look, giving an attorney general wide latitude in how he might summarize Mr. Mueller’s findings and can choose what remains secret.
Attorneys general are required to notify Congress whenever a special counsel completes an investigation, but even those rules are vague and unclear.
The regulations are relatively untested since they were adopted in 1999 in response to the sunsetting of the Watergate-era law that allowed the appointment of an independent counsel.
“We are in uncharted territory here, because this is the first time the special counsel regulations have been used,” Mr. Ray said.
• Jeff Mordock can be reached at jmordock@washingtontimes.com.
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