Now that Special Counsel Robert Mueller has submitted his report to Attorney General William Barr, the biggest questions are: Is the public ever going to see it? And, if so, how much? But at this point, it’s not even clear whether Congress will get to review the entire original document.
The findings from Mueller’s 22-month investigation, which came to an end last Friday, were revealed in bits and pieces through 215 criminal charges and 34 indictments. Mueller was tasked with investigating Russia’s interference in the 2016 election, as well as any coordination or links between President Donald Trump’s campaign and the Russian government. According to a four-page summary of Mueller’s conclusions that Barr released on Sunday, the investigation “did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” Barr also said that Mueller had not made a decision on obstruction of justice, but both he and Deputy Attorney General Rod Rosenstein determined that Trump had not committed obstruction. Trump and his allies have declared themselves vindicated.
But the final findings, which reportedly run to at least 300 pages excluding exhibits, could offer important insights into Mueller’s legal reasoning and explain whether the evidence he collected in the obstruction and conspiracy cases was either substantial but not enough to rise to the level of a criminal offense, or flimsy and not even close to criminal. (The special-counsel regulations require that the office’s final report at the very least explain its prosecution and declination decisions, even if it doesn’t present all the underlying evidence the team amassed.)
For that reason, Democratic lawmakers are demanding to see Mueller’s findings in his own words—rather than summarized in the memo Barr wrote to Congress last weekend. There is nothing in the special-counsel regulations that prevents the report from being made public, let alone anything that would prevent it from being provided to Congress, according to Neal Katyal, the former acting solicitor general who helped draft the regulations in 1999. “The regulations set a floor, not a ceiling, on the amount of transparency,” he wrote in The Washington Post last week.
Making the full report available to Congress, however, let alone to the public, might be an uphill battle, experts tell me—so far, Barr and Rosenstein might be the only officials outside of the special counsel’s team who have seen the report itself. “The DOJ regulations really do leave it up to Barr to decide,” Katy Harriger, a professor at Wake Forest University and the author of The Special Prosecutor in American Politics, told me in an email. “The only constraints on that are public pressure, which, if loud and consistent enough, is likely to make him release more, rather than less, of the report.”
A Justice Department official who requested anonymity to discuss the internal deliberations said earlier this week, “We are hoping to have a public version of the report to Congress and to the public in weeks not months.” But a Democratic staffer who spoke with reporters on Thursday on condition of anonymity said that lawmakers still aren’t sure whether they will see the report itself or a summary of it, and what is in the “public version” of the report is still unclear.
Right now the main barrier standing in the way of Barr releasing Mueller’s report to Congress is the grand-jury material included in it, according to several Democratic staffers who spoke with reporters on Thursday on the condition of anonymity. Mueller empaneled a grand jury shortly after being appointed in May 2017. A grand jury hears testimony from witnesses, reviews evidence provided by the prosecutor, hears jury instructions that define the law, and then votes on whether a target should be indicted—as such, the grand-jury materials are key to understanding the full scope of the investigation. Federal rules of criminal procedure obligate Barr to redact the grand-jury material, although in some past instances, such material was released to Congress. The Watergate “Road Map,” for example, which was unsealed by the Washington, D.C., District Court in October, was written by the grand-jury foreman at the time specifically for Congress. It outlined the evidence the jury received over the course of the Watergate probe, but made no recommendation about the best course of action—only that the jury should “presently defer to the House of Representatives and allow the House to determine what action may be warranted at this time by this evidence.”
The House Democrats’ position now is that “there is nothing stopping Barr from giving us the grand-jury material” that informed Mueller’s findings, according to another Democratic staffer who spoke with reporters on Thursday on condition of anonymity to discuss internal deliberations. “If he doesn’t, then that amounts to a cover-up.” Another Democratic staffer said that, in a call with House Judiciary Committee Chairman Jerry Nadler on Wednesday night, Barr “would not commit to releasing the full report”—including grand-jury material—to the House. A spokesman for House Minority Leader Kevin McCarthy did not return a request for comment about the House Republicans’ position on seeing the full report. Senate Judiciary Committee Chairman Lindsey Graham, a close Trump ally, indicated on Wednesday that he will accept whatever redactions Barr makes, including of grand-jury material.
Between the withholding of grand-jury and privileged material and the redaction of classified information, the public could be left with a shell of the original report.
Barr is currently operating within the confines of the special-counsel regulations, which were written as a reaction to the independent-counsel rules. Those rules expired in 1998 at the end of the Whitewater investigation. Unlike Mueller, Ken Starr, the independent counsel at the time, was obligated to send his final report to Congress rather than the attorney general. Congress then made the report public, which prompted a backlash among those who were angry that Starr had aired details of President Bill Clinton’s affair with Monica Lewinsky—an episode that went well outside of Starr’s original mandate to probe a land deal in Arkansas. “We believe that information obtained during a criminal investigation should, in most all cases, be made public only if there is an indictment and prosecution, not in lengthy and detailed reports filed after a decision has been made not to prosecute,” Janet Reno, Clinton’s attorney general, told Congress at the time. “The final report provides a forum for unfairly airing a target’s dirty laundry.”
Whereas the old rules required that the independent counsel tell Congress about “substantial and credible information that an impeachable offense may have been committed,” the new rules are much more narrow: The special counsel’s office, in its report, need only explain to the attorney general its prosecution or declination decisions. In other words, Mueller’s “solemn obligation is not to produce a public report,” Starr wrote for The Atlantic earlier this month. “He cannot seek an indictment. And he must remain quiet.”
The Democrats, meanwhile, argued that the Republican-controlled 115th Congress set a precedent for asking for and receiving highly sensitive and classified material related to the probe into Russia’s interference in the U.S. election, which Mueller then took over— and they’re demanding the same degree of transparency now. For instance, the DOJ turned over roughly 880,000 pages of internal investigative records from the Hillary Clinton email probe in July 2018, one staffer said, as well as “thousands of pages from highly sensitive documents, including classified and law-enforcement-sensitive information, related to the ongoing Russia investigation that Mueller took over.”
The Democrats have set an April 2 deadline for Barr to turn over the report, but will consider issuing a subpoena if the Justice Department blows that deadline, the Democratic staffers said on Thursday. Nadler asked Barr on Wednesday night whether he would meet the April 2 deadline, according to one of the staffers, and Barr said it was “very unlikely” because the department is in the process of redacting the document. The Democrats said that they are also willing to go to court to get the grand-jury material.
Katyal argued in the Post that Congress would “almost certainly win” a subpoena battle. But the Justice Department could still claim that portions of the report are subject to executive-privilege protections, Harriger explained. A legal battle would probably ensue, but the courts are typically reluctant to get involved in privilege disputes between Congress and the executive branch, and usually encourage “negotiation” in those instances, Harriger said. It is also at Barr’s discretion, according to Starr, “to share whatever he intends to report to Congress with the president and the president’s lawyers … to ensure that the president’s constitutionally recognized privilege—executive privilege—is dutifully safeguarded.”
The Democratic staffers declined to comment on Thursday when asked whether Nadler and Barr had discussed the issue of executive privilege. “It may be that executive privilege becomes an obstacle to getting the report released,” one staffer, who spoke on condition of anonymity, said. “It’s not clear to us how the attorney general will litigate those questions, but we don’t think it would be appropriate for him to show the report to the White House before Congress sees it.”
The FBI, meanwhile, is reportedly preparing to brief the Gang of Eight—House Intelligence Committee Chairman Adam Schiff, House Intelligence Committee Ranking Member Devin Nunes, Senate Intelligence Committee Chair and Vice Chair Richard Burr and Mark Warner, House Speaker Nancy Pelosi, House Minority Leader Kevin McCarthy, Senate Majority Leader Mitch McConnell, and Senate Minority Leader Chuck Schumer—on Mueller’s counterintelligence findings, which are classified. But the House Intelligence Committee believes that all of its members are entitled to review any classified information Mueller included in his report.
The Democrats still want to know, above all else, whether the president was compromised by Russia—a question House Intelligence Committee Republicans have reportedly already closed the book on. GOP members told Politico that Barr’s summary “conclusively refutes” the idea that Trump or anyone in his orbit was compromised in 2016, despite the same Republicans’ concluding last year that the campaign’s contacts with Russians were “troubling” and “inconsistent with U.S. national security interests.”
All of this still leaves open the question of how much of the report the public will actually be able to read. Regardless, the Democrats intend to continue pursuing their own probes. “Barr’s letter is very narrow in describing the scope of the investigation,” one Democratic staffer said on Thursday. He explained that while Mueller’s job was “primarily to determine whether a crime was committed,” the question of whether the president or anyone on his campaign team was targeted and compromised—which is not in itself illegal—still stands. “There are risks that our foreign policy right now is not designed to be in our national interest, but in the president’s interests,” the staffer said. “We will continue to investigate this.”