With Congress still trying to extricate the Mueller report from the Justice Department, and the Trump administration doing its best to keep it from public view, lawyers and lawmakers are left to grapple with an existential question: Was the special counsel’s report and its subsequent disclosure sufficiently detached from political influence?
A tug-of-war with Congress over access to the report was all but assured after the appointment by President Donald Trump of William Barr as his attorney general.
Barr sent the Justice Department an unsolicited 19-page memo before his appointment last year, in which he opined that no president could be prosecuted for obstruction of justice. Many political observers said the document was likely key in his having been tapped in the first place by Trump for the job.
Although Barr is widely respected by lawmakers of all political persuasions, his nomination earlier this year to replace ousted Attorney General Jeff Sessions sounded alarm bells, given his past statements questioning whether the Mueller investigation should even have taken place.
Barr’s statements, coupled with repeated White House efforts during its nearly two years of existence to discredit Mueller’s probe, have led critics to worry that an unredacted full report may never see the light of day.
But if the architects of existing statutes are in agreement on one thing, it is that the general public — and certainly Congress — has an absolute right to see the full report.
“Barr has a responsibility to the executive branch and the special counsel—and clearly as well to Congress and the public interest,” said Michael Davidson, Norman Ornstein, and Thomas Mann, in a recent column in the Atlantic Monthly.
That trio played a leading role in drafting current Justice Department guidelines that supplanted the independent counsel legislation which governed Ken Starr’s prosecution of Bill Clinton during the 1990s.
Congressional access to an independent counsel’s findings was included in their vision for the new federal regulations.
“Our recommendations were meant to ensure that the attorney general’s regulations did not impair Congress’s access to vital information in any meaningful way. The burden is on Barr to prove that wisdom correct,” Davidson, Ornstein, and Mann wrote. Their recommendations were enshrined, largely as written, into the Code of Federal Regulations by then-Attorney General Janet Reno.
At the time, they now acknowledge, there was an inherent assumption that future attorneys general and presidents who appoint them would be actors in good faith, and would follow the spirit of the law by turning over any final report to Congress, and to the public, with minimal redactions.
Instead, they’ve been confronted by a White House that came perilously close to directly impeding the investigation, and an attorney general who, despite his assurances, has yet to disclose even a redacted version of the full report to Congress.
A staffer for a senior member of the House Judiciary Committee, who requested anonymity because he was not permitted to speak publicly about the matter, told ThinkProgress that the view on Capitol Hill is that Barr “has already said the president cannot obstruct justice, [which] really raises more questions than answers, given [the administration’s] track record across the board.”
And Neal Katyal — who in 1999 drafted special counsel regulations which have guided the Mueller investigation of the Russian government’s efforts to interfere in the 2016 presidential election — had even more pointed language, as he asserted Congress’ prerogative to see the full Mueller report.
“[T]he canard that some Trump allies are floating, that a public release of the report would violate the special counsel regulations, is false. The regulations set a floor, not a ceiling, on the amount of transparency,” said Katyal, who served as acting solicitor general during the Obama Administration and currently is a professor at Georgetown University Law School, in an opinion piece last month in The Washington Post.
Creators of the guidelines that led to the creation of a special prosecutor position admit they might have erred.
In drafting the guidelines that governed how a special prosecutor’s findings would be made public, they relied on precedent — and a spirit of good will and due diligence by the attorney general in power.
Mark Tuohey, who was also part of the team that helped shape today’s regulations governing independent counsel investigations, said it’s an open question whether they’ll have to modify the rules again to prevent an attorney general from blocking access to the findings of a future investigation.
“We’ll see how this plays out in regards to what’s provided to Congress and what’s in the public record…I think we have to see how this is treated and how it ends up before we decide whether the special counsel regulations need to be amended,” he told ThinkProgress.
However, Tuohey said he believes Barr has acted judiciously in not making the report available to the White House before lawmakers have had a chance to see it. “That would be inappropriate,” he said.
He was less forgiving, however, about Barr’s decision to release his own four-page synopsis of the the 400-page Mueller report.
“What Bob Mueller did on the obstruction issue was to conclude that there were facts on both sides of the case. He chose not to make a prosecutorial judgment, but to leave it to Congress if there was a basis to move forward,” he said.
“I thought it was unfortunate that he was premature in determining there was no basis for obstruction of justice,” Tuohey added. “That decision, under the rules, should be left to Congress.”
Most congressional lawmakers agree.
“Mr. Mueller went about this investigators exactly how an unbiased investigator should—he followed the facts and then left it to Congress to determine what those facts mean,” Rep. Lou Correa (D-CA), who sits on the House Judiciary Committee, told ThinkProgress.