A Showdown Is Coming Over Release of the Mueller Report

In his initial letter about the Mueller report, Attorney General Barr identified two areas of material he was reviewing that would be redacted before it was shared publicly.

  1. Material that could be subject to Federal Rule of Criminal Procedure 6(e), which imposes restrictions on the use and disclosure of information relating to “matters occurring before [a] grand jury.”
  2. Information that could impact other ongoing matters, including those that the Special Counsel has referred to other offices.

By the time Barr released his second letter on Friday, the list of items had grown to four, with these two additions:

  1. Material the intelligence community identifies as potentially sensitive sources and methods.
  2. Information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.

While each of those areas might include information from the Mueller report that would be inappropriate to release to the public, the issue is that the attorney general is reserving for himself the right to decide which portions of the report fit those criteria. Members of Congress would have no oversight role because they would only see the redacted report Barr is preparing for public release.

Given that Attorney General Barr has already taken it upon himself to absolve the president of obstruction of justice before anyone has been able to review Mueller’s evidence, there is reason to be suspicious that he would define those categories in the broadest possible terms, which could remove significant evidence. Not only would that distort what the public learns, it could hamper the ability of Congress to complete their investigations.

I have previously written that the only way to ensure trust is to implement a two-tiered release of the report. Members of Congress must see the full Mueller report, along with supporting documents, before a redacted version is shared with the public. Josh Marshall agrees.

The only legitimate way this concludes is for Congress or some subsection of Congress to get the complete and un-redacted Mueller Report. Full stop. Precedent is on the side of this approach. The Congress also have various models to accommodate. It can be released only to the committees of jurisdiction. It can be released only to the Gang of Eight, though that strikes me as far too restrictive. It can of course be released to the entire Congress, which seems most reasonable. What redactions are included in the publicly released Mueller Report is something reasonable people can disagree over. But as long as the substance of the redactions remain secret from the Congress the whole thing is illegitimate. If the redactions of the public version are reasonable we need members of the opposition party to confirm that that is the case.

That is why Rep. Jerrold Nadler, chair of the House Judiciary Committee, responded to Barr’s second letter with this:

As I informed the Attorney General earlier this week, Congress requires the full and complete Mueller report, without redactions, as well as access to the underlying evidence, by April 2.  That deadline still stands.

…There is ample precedent for the Department of Justice sharing all of the information that the Attorney General proposes to redact to the appropriate congressional committees. Again, Congress must see the full report.

Nadler followed that up with an op-ed in the New York Times on Monday.

We — the members of the Judiciary Committee, the House of Representatives and the entire American public — are still waiting to see that report. We will not wait much longer. We have an obligation to read the full report, and the Department of Justice has an obligation to provide it, in its entirely, without delay. If the department is unwilling to produce the full report voluntarily, then we will do everything in our power to secure it for ourselves…

The attorney general’s recent proposal to redact the special counsel’s report before we receive it is unprecedented. We require the evidence, not whatever remains after the report has been filtered by the president’s political appointee.

According to ABC’s Benjamin Siegel, Democrats have announced that they will hold a vote on Wednesday authorizing Nadler to issue a subpoena to Barr.

That will initiate a showdown between the executive and legislative branches of government if, as expected, Barr refuses to comply and continues to hold himself above Congress in having access to Mueller’s full report. All of this will then head to the judicial branch, where Chief Justice John Roberts could very well become the “decider.”

While the outcome in the courts is unknown, it is important to remember that none of this would be happening if Republican Bob Goodlatte was still chair of the House Judiciary Committee. The only reason we might eventually see the evidence Mueller uncovered is because elections matter.

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Nancy LeTourneau

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