The Mercury News

Mueller report: How it could play out

Redacted version, expected Thursday, has Democrats gearing up for a fight

- By Amber Phillips

WASHINGTON >> The Mueller report is expected to be released Thursday, but we may not learn that much. Attorney General William Barr has said he’ll redact along four broad categories, meaning key informatio­n could remain undisclose­d.

As a result, congressio­nal Democrats are gearing up to fight for the unredacted report. It’s probably the only chance lawmakers and the public have to learn all that special counsel Robert Mueller found in his nearly two-year investigat­ion into Russian collusion and how it intersecte­d with the Trump campaign.

Here’s a guide to the coming, possibly lengthy legal battle over the Mueller report:

• Congress subpoenas this report from the Justice Department

This is the opening

salvo from Democrats in Congress. And it will center on the House Judiciary Committee, which oversees the Justice Department. Its chairman, Rep. Jerrold Nadler, D-N.Y., has said he has every intention of issuing a subpoena to demand that Barr hand over the full report to Congress — he already had his committee vote (along party lines) to authorize him to issue it.

Rep. Adam Schiff, D-Calif., has used his authority as head of the House Intelligen­ce Committee to request any informatio­n in the report related to “the counterint­elligence investigat­ion,” which means anything tied to Russia’s attempt to influence the 2016 presidenti­al election. (The top Republican on the committee backs him up on this request.)

Rep. José Serrano, D-N.Y., chairman of a House appropriat­ions subcommitt­ee that oversees the Justice Department’s budget, hasn’t ruled out withholdin­g or putting conditions on the agency’s budget until Barr complies.

Don’t expect Barr to hand over the full report now that it’s subpoenaed. He’s argued that it contains informatio­n that by law should remain secret. That means much of it won’t be readable, because most of the investigat­ion centered around testimony before a grand jury.

• Congress goes to court. Once Barr ignores the subpoena, Congress can take the attorney general to court and ask a judge to weigh in. Nadler has said he’s ready to fight this all the way to the Supreme Court, but legal experts are divided on whether that will work.

The main sticking point here is grand jury informatio­n, which is how Mueller got much of his testimony. By law, grand jury testimony is supposed to remain secret save for a few exceptions.

One notable exception is for related judicial proceeding­s. Could Congress convince a judge that it’s conducting a related judicial investigat­ion and thus needs the grand jury informatio­n in the Mueller report? Nadler told reporters he’s considerin­g arguing that the grand jury material would be relevant to any impeachmen­t proceeding­s Congress might want to undertake.

Jack Sharman, a former counsel to Congress during the Whitewater investigat­ion in the 1990s, is skeptical that will work.

“Usually when Congress goes to court, it loses,” he said. “Either because it somehow lacks standing, the legal right to be there in the first place. Or because the court punts, saying it’s a political question.”

But Nelson Cunningham, a former federal prosecutor under Rudy Giuliani and a top lawyer in the Clinton White House, thinks Congress has a shot, since there’s legal precedent for the Justice Department to hand this kind of informatio­n over. In the 1970s, Congress got the special counsel report for the Watergate investigat­ion after asking a court for it.

• Congress could ask for some informatio­n but not all.

If lawmakers decide they won’t win the battle for the full report, they could try to argue in court that Barr was overzealou­s in his redactions and that he should have blacked out a paragraph, not a whole page.

The problem for Congress is that they don’t know what they don’t know, Levinson pointed out. How can they argue that a blacked-out line is something that should be public when they don’t know what that line says?

• Barr could offer up something to try to avoid a legal battle.

Earlier this month, Barr told Congress he’s willing to consider redactions on a caseby-case basis. That didn’t satisfy lawmakers then and it probably won’t now. But perhaps it’s indicative of Barr’s willingnes­s to compromise to avoid a court battle. He could hold a closed-door session with just key lawmakers to see the full report. That’s how the Justice Department already briefs Congress on highly classified informatio­n.

• Congress could begin impeachmen­t proceeding­s against Barr.

Remember how Congress started all this by subpoenain­g Barr to hand over the full report? If he doesn’t comply, Congress could vote to hold him in contempt, and Democrats ostensibly have enough votes in the House of Representa­tives to do this, if most in the party agree.

But would Barr’s own Justice Department lawyers try to enforce that contempt vote, which would mean sending their boss to jail? Probably not.

So the next step for Congress would be impeachmen­t proceeding­s against Barr. Cunningham said something like this has only happened once or twice in U.S. history, but he sees a case for Congress to make that this is as important as it gets.

If the legal battle gets to this point, we’re in uncharted territory.

 ?? SACRAMENTO BEE ?? Very high fire hazard severity zone
Communitie­s profiled for this story
Note: Analysis does not include communitie­s with fewer than 1,000 residents.
Sources: Cal Fire, U.S. Census
SACRAMENTO BEE Very high fire hazard severity zone Communitie­s profiled for this story Note: Analysis does not include communitie­s with fewer than 1,000 residents. Sources: Cal Fire, U.S. Census
 ?? MANDEL NGAN — GETTY IMAGES ?? Attorney General William Barr, center, is expected to release a redacted version of special counsel Robert Mueller’s report into Russian meddling in the 2016electi­on.
MANDEL NGAN — GETTY IMAGES Attorney General William Barr, center, is expected to release a redacted version of special counsel Robert Mueller’s report into Russian meddling in the 2016electi­on.

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