Congress won’t leave us in dark on Mueller
Here’s how lawmakers will go after redacted info
The Mueller report that is released to the public today will not be the final version, not by a long shot. Attorney General William Barr has removed four kinds of material from the report. But Congress can bypass many of the laws and regulations that bind the attorney general, and insist on access to much of the information Barr holds back. Here is how Congress could get to see it:
❚ Grand jury information. Grand jury proceedings are usually kept secret unless an investigation results in an indictment. But there are several exceptions. Congress is most likely to use the one that allows the court to unseal grand jury information “preliminarily to or in connection with a judicial proceeding.” It is well-established that an impeachment proceeding is a “judicial proceeding.” And it’s hard to argue that a congressional investigation of potential wrongdoing by President Donald Trump, especially if it’s something like obstructing justice or engaging in dodgy dealings with Russians, isn’t a necessary preliminary to what might become an impeachment proceeding.
There’s a very solid precedent for this, courtesy of President Richard Nixon. In Haldeman v. Sirica, the court endorsed exactly this reasoning when it ordered the release of grand jury information to Congress. The House Judiciary Committee reviewed the information privately and used it as a road map for its 1974 impeachment proceedings.
❚ National security. Information that could reveal intelligence sources and methods is the most sensitive category in the report, but also the easiest for Congress to access. Congress regularly reviews extremely sensitive intelligence data. There is even a special exemption allowing this information to be shared with Congress on the list of exceptions to grand jury secrecy.
In the most sensitive cases, the intelligence is shared only with the Gang of Eight — the top Democrats and Republicans on the House and Senate Intelligence committees, and the House and Senate majority and minority leaders. This helps ensure that everything in the Mueller report that should be made public will be made public.
❚ Ongoing criminal investigations. This is where Barr and Congress are most likely to be at loggerheads. While the Department of Justice (DOJ) has a strong interest in protecting ongoing investigations, Congress has an equally strong interest in seeing the full picture of special counsel Robert Mueller’s findings. There is an element of “hiding the ball” in saying Mueller won’t be filing more indictments, yet redacting large quantities of information regarding criminal investigations that Mueller has passed off to others. Congress may well decide that transparency is more important than the risk of compromising a potential prosecution.
Congress has an absolute right to conduct oversight investigations even if they conflict with a criminal investigation or prosecution. While the DOJ regularly asserts an “ongoing investigation” privilege to protect its own files and records from a congressional subpoena, the extent of that privilege has never been fully determined by a court. Instead, congressional demands for information that might impact a criminal investigation are virtually always resolved through intense negotiations between DOJ officials and the committee conducting the investigation.
The Barr version of the Mueller report isn’t the end of a process. It’s the opening bid in a negotiation. Expect Congress to eventually have access to a lot more information on other investigations than Barr initially releases.
❚ Third party privacy rights. DOJ policy is to not reveal information about people who aren’t being prosecuted in order to protect their privacy. Barr has said he’d redact information regarding “peripheral” third parties, and that he would not redact information to protect Trump’s reputation. But these are subjective judgments.
It’s unlikely a court would allow the DOJ to resist a congressional subpoena on the grounds that a third party might find it embarrassing if the information were provided to Congress. While it is true that Congress can’t compel the production of evidence without a proper purpose, looking into potential presidential misconduct is about as proper as it gets. There’s even a statute making it clear that potential embarrassment is not a valid reason for refusing to testify before Congress. But, much like concerns about information that might disrupt an ongoing criminal investigation, both Congress and the DOJ have a shared interest in handling this information correctly. So expect this to be another area of negotiation.
Finally, there is the question of what additional information the public might eventually see. The short answer is that, under the Speech and Debate clause of the Constitution, congressional committees and even individual legislators have absolute authority to place any information into the Congressional Record that they see fit.
As a practical matter, Congress seldom makes use of this privilege and usually respects protections for classified and otherwise sensitive material. But if Congress does discover something in all this redacted material — even highly classified material — that it believes the public needs to know, it will be published. It can’t be covered up. There will be no hidden smoking gun. That’s probably the best argument for releasing the entire report to Congress, even if it can’t be made public.