Analysis: Tug of war likely over release of Mueller report

What will the public see, and when will it see it?

Those became the key questions Sunday after Attorney General William Barr released to members of Congress a brief summary of the conclusions of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

The answers, based on Barr’s letter to lawmakers, are cloudy.

The public will see something, but how much and when is unknown. Barr said in his letter that being “mindful of the public interest,” his “goal and intent is to release as much” of the report as he can, consistent with the law.

That means scrubbing the report of any information that could compromise the secrecy of grand jury proceedings, as well as any material that could affect other ongoing investigations or prosecutions. Mueller has referred several matters to other prosecutors, and those inquiries are still underway.

The attorney general said he has asked Mueller and the Justice Department to begin the process of identifying such material so it can be redacted, but a speedy timetable is unlikely.

“The schedule for processing the report depends in part on how quickly the Department can identify the . . . material that by law cannot be made public,” Barr wrote.

Mueller interviewed hundreds of witnesses and reviewed thousands of documents, so there is voluminous material to sift through. If Barr decides to release any of the grand jury information, such a disclosure may have to be approved by a judge.

Another factor is a Justice Department policy that directs prosecutors to withhold potentially negative information about people they have investigated but not charged.

Those restrictions mean the report, when it’s finally released, could include many pages of blacked-out sections – a state of affairs unlikely to satisfy congressional Democrats.

Which raises more questions: How far will Democrats go to get more information, and how long will that take? A subpoena by the House to get the report could well end up in the Supreme Court, with Congress seeking to assert its investigative authority while the Justice Department argues for maintaining the confidentiality of its probes.

Rep. Jerrold Nadler, D-N.Y., chairman of the House Judiciary Committee, said in a tweet late Sunday that he would call Barr to testify “in the near future.” He suggested, as he has before, that the committee is prepared to use its subpoena power to obtain the full Mueller report.

Speaking Sunday on CNN’s “State of the Union,” Nadler said that while he would “try to negotiate” with Justice to obtain the report, the committee will “certainly issue subpoenas” to get it and “absolutely” take the case to the Supreme Court, if necessary.

Nadler and other Democrats focused over the weekend on the ambiguities in Mueller’s report, particularly regarding possible obstruction of justice by President Donald Trump. Barr’s letter to Congress quoted the document as saying that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

Nadler tweeted, “Special Counsel Mueller worked for 22 months to determine the extent to which President Trump obstructed justice. Attorney General Barr took 2 days to tell the American people that while the President is not exonerated, there will be no action by DOJ.”

Rarely in the annals of special prosecutors and independent counsels has so much information been summarized in so few words as in Barr’s four-page letter Sunday.

The Mueller investigation spanned several continents. It encompassed 2,800 subpoenas, 500 search warrants and about 500 witnesses. It marshaled the combined efforts of 19 lawyers and 40 investigators, including FBI agents, intelligence analysts and forensic accountants.

In a different era, under an independent counsel law that expired 20 years ago, the public and members of Congress could now be poring over hundreds or even thousands of pages of material.

But since Congress let that post-Watergate law lapse, concerned that it gave independent counsels too much power, the Mueller investigation is governed only by regulations established by the Justice Department.

Experts agree that under those regulations, Barr need not voluntarily disclose any more than he already has. But Barr also has the authority to release considerably more if he chooses, subject to redactions to protect grand jury secrets and ongoing investigations.

“The Attorney General may determine that public release” of a special counsel’s report “would be in the public interest, to the extent that release would comply with applicable legal restrictions,” the regulations say.

“Nothing in the special counsel regulations – or other Justice Department rules – prohibits Barr from releasing the report to Congress or the public,” said Andrew Coan, a law professor at the University of Arizona and author of “Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law.”

“The grand jury secrecy rules mentioned in Barr’s letter to Congress today may require some minor redactions, absent a court order permitting disclosure of grand jury information,” Coan said. “Otherwise, it is within Barr’s power to release the full report. It may also be in the administration’s political interest to do so if Barr’s characterization of the report is accurate. It is certainly in the public interest.”

Congress also has broad constitutional authority of its own to conduct investigations. And by all indications, the House, now under Democratic control, intends to use it to obtain as much of Mueller’s information as it can.

“I think they have a presumptive right to get the reports the executive branch puts out,” said William Marshall, a law professor at the University of North Carolina and an expert on executive privilege and congressional investigations.

“The basic framework is that Congress has a right” to the materials, he said, “unless there’s an affirmative reason to limit that right, in which case there would be a tug of war.”

Where one stands on such questions depends on where one sits. Earlier in the Trump administration, GOP lawmakers demanded, and received, investigative documents related to the Justice Department’s investigation of former Secretary of State Hillary Clinton’s email arrangement, among other inquiries.

And in the Obama years, Republicans subpoenaed then-Attorney General Eric Holder for information he refused to provide on a botched operation targeting illegal firearms called “Fast and Furious.” Holder invoked executive privilege.

Congress, then controlled by Republicans, went to court to enforce a contempt of Congress citation against Holder, making arguments that Democrats may soon find themselves echoing.

“The Legislative Branch,” the GOP brief said, “is vested by the Constitution with the responsibility and authority to oversee Executive Branch agencies – including the (Justice) Department – to ensure, among other things, that unelected officials in charge of those agencies are held fully accountable to the American people.”

Participating in an amicus brief, or friend-of-the-court filing, in support of the Republicans, coincidentally, was Jay Sekulow, now one of Trump’s lawyers.

Ultimately, Judge Amy Berman Jackson, who has also presided over the Mueller grand jury, ordered Holder to produce the materials – a precedent likely to be cited by Democrats in their pursuit of materials from the Russia probe. But the case ended with a settlement after Holder left office, so it was never adjudicated by higher courts.

It took Republicans six years to enforce their subpoena in that case. The lesson for Democrats may be that the process of forcing the executive branch to turn over documents can take a very long time.