The Man Who Could Determine the Fate of the Mueller Report: John Roberts

Attorney General William Barr released a four-page summary of Special Counsel Robert Mueller’s report on Sunday that raised more questions than it answered. Peter Baker of the New York Times has reported what we can expect to happen next:

Beyond those bottom-line conclusions, Mr. Mueller’s full report has yet to be released, and it remained unclear if it ever would be. House Democrats have demanded that it be sent to them by next Tuesday, but the Justice Department outlined a longer schedule, saying that it will have its own summary ready to send to lawmakers within weeks, though not months.

If Barr’s next move is to simply give Congress a longer version of his summary of the report, that will definitely not satisfy Democrats. Take a look at what House Intelligence Committee Chair Adam Schiff said on Sunday.

In response to some rather ignorant questions from Margaret Brennan, Schiff laid out the need for transparency on the many questions that remain—including whether Trump or anyone in his administration has been compromised by a foreign government.

It is Schiff’s calm, thoughtful approach to these questions that has made him one of the primary targets of Trump’s bullying. To demonstrate how these two men are polar opposites, Politico reports that, during a meeting of House Republicans, the president called Schiff a “pencil neck” and said he would be a horrible golfer. That’s what passes for a stinging critique of a man who got his law degree from Harvard and previously served as an assistant U.S. attorney.

During the aforementioned interview, Schiff made reference to the fact that, should the attorney general refuse to release the entire Mueller report, Democrats will go to court to insist on full transparency. If Barr continues to obstruct Congress from accessing this information, the case will eventually be decided by the Supreme Court.

Knowing that his fate could ultimately rest with the nation’s highest court, Trump has nominated two justices with extremist views on executive privilege: Neal Gorsuch and Brett Kavanaugh. It is fairly certain that, in a ruling about the release of the Mueller report, those two would join with Clarence Thomas and Sam Alito to conceal it.

Given that the other four justices are likely to back transparency, the decision could rest on Chief Justice John Roberts. While he tends to have an executive branch bias, Roberts made clear during his confirmation hearings that “judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”

Schiff made an important point during the interview with Brennan about how the Trump administration and congressional Republicans have released hundreds of thousands of pages of discovery from investigations in which no one was indicted, as well as intelligence documents related to the Mueller investigation. It will be difficult for them to make the case that their own precedent should now be abandoned.

The major court precedent that would apply to this case is United States vs Nixon.

Here, the Supreme Court ruled on executive privilege when Watergate Special Prosecutor Leon Jaworski demanded that President Richard Nixon produce the audiotapes of his conversations with aides that dealt with the criminal investigation of his administration.

Nixon invoked executive privilege and refused to turn over any tapes. The Supreme Court actually acknowledged the existence of a privilege, the need to allow a president to get free and candid advice. But it denied that the president’s claim of absolute privilege could prevail and said in this case that the public interest was served by obtaining the full truth during a criminal prosecution. Nixon gave up the tapes–and days later resigned from office.

That “public interest” is what Schiff was referring to in his interview with Brennan when he addressed the issue of how the precedent for transparency applies in this case.

I have no doubt that William Barr is a smart man. But he might be setting himself on a collision course with Adam Schiff in a battle that will ultimately be decided by John Roberts. Meanwhile, we can expect the president to continue acting like a tantruming bully—something that hasn’t served him well with the chief justice in the past.

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Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.