And The Beat Goes On: Congress Spars With Trump And Barr Over Mueller Report – Analysis

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By Published by the Foreign Policy Research Institute-Eurasiareview

By George W. Croner*

(FPRI) — For those who thought that the long-awaited release of the redacted “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” (the “Mueller Report” or the “Report”) might presage an end to debate over the controversial events investigated by Special Counsel Robert Mueller, the past few weeks have provided a stark reminder that partisan divisions and the election calendar will not allow for such a respite.

Having recently written to offer my own views on the Mueller Report itself,[1] the subsequent events that now have followed the Report’s completion and submission to the Attorney General are deserving of further comment since, in many respects, it is those events that will now drive the course of the inevitable follow-up to Mueller’s investigation and conclusions.

The Handling of the Public Release of the Mueller Report

What might be dubbed the “post-Report” phase of the Mueller investigation began with the Attorney General’s March 24, 2019 letter to Congress (the “March 24th Letter”)[2] providing William Barr’s four-page synopsized interpretation of “the principal conclusions reached by [the] Special Counsel.” Most notable, where Mueller had carefully refrained from reaching a prosecutorial conclusion on whether the President had obstructed justice, Barr rushed to fill the void by announcing that he and Deputy Attorney General Rod Rosenstein had concluded that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” This judgment was made despite Mueller’s specific statement that “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”

Not surprisingly, the Attorney General’s March 24th Letter triggered immense public scrutiny and heightened anticipation for the release of the actual Report—despite the Attorney General’s promised redactions. In the midst of the initial reaction prompted by Barr’s comments, Mueller wrote to Barr taking issue with the Attorney General’s summary: “‘The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this office’s work and conclusions,’ Mueller wrote. ‘There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.’”[3] The Attorney General chose not to publicly share the content of Mueller’s letter, or the fact that he had received it, and the letter’s contents remained unknown until revealed by The Washington Post on April 30, 2019.

The next step in the Justice Department’s choreographed release of its redacted version of the Mueller Report played out in the somewhat unusual format of an April 18, 2019 press conference, where the Attorney General held court flanked by Rod Rosenstein and Edward O’Callaghan. By using such an orchestrated setting as his chosen stage for the “release” of his redacted version of the Mueller Report, the Attorney General assured that the story would focus nearly as much on his presentation as on the merits of the Special Counsel’s work, and, in his remarks at the press conference, Barr doubled down on several of the points made in his March 24th Letter.

While certain aspects of the Attorney General’s public performance on April 18th might be defensible if considered in isolation, the chosen forum allowed Barr an initial opportunity to vet the Special Counsel’s findings selectively and, one could argue, sometimes misleadingly—but uniformly in a way that aligned with President Trump’s narrative. A few examples: Barr said that “the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.” This ignores the President’s refusal to be interviewed during the investigation, as well as Mueller’s conclusion that former Trump campaign manager, Paul Manafort, lied to the government after statements by the President that “had the potential to influence Manafort’s decision whether to cooperate with the government.” Barr also announced that Mueller had found “substantial evidence to show that the President was frustrated and angered” by an investigation that was “undermining his presidency,” suggesting that “this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.” In truth, what Mueller actually said was that while “[s]ome evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs . . . [o]ther evidence . . . indicates that the President wanted to protect himself from an investigation into his campaign.” Contrasting this deliberately selective phraseology with Mueller’s own language as found in the Report reveals that Barr presented, at best, half the picture.

Perhaps even more troublesome, when asked whether the Justice Department’s policy against indicting a sitting President[4] “had anything to do with” Mueller’s refusal to reach a decision on obstruction of justice, Barr responded that Mueller “made it very clear that . . . [h]e was not saying that but for the [Office of Legal Counsel] OLC opinion, he would have found a crime.” Barr’s statement may be literally true, but given that Mueller’s actions derived entirely from his view that the OLC Opinion precluded indictment and prosecution, it was misleading. The Report makes clear that the Special Counsel’s perception of his required acceptance of the OLC Opinion that a sitting President could not be indicted[5] incontestably influenced Mueller’s view that he was, therefore, unable “to make a traditional prosecutorial judgment” with respect to the President. Moreover, Mueller emphasized that his reticence to make such a judgment reflected not only the constitutional considerations underlying the OLC Opinion, but also the practical view “that a federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern and potentially preempt constitutional processes for addressing Presidential misconduct.” By carefully parsing his press conference presentation, Barr may have been literally accurate that Mueller had not made the OLC Opinion a “but for” basis for not accusing the President of a crime; but, he conveniently ignored the Special Counsel’s observation that—in perhaps the most freighted twin statements found in the Report—“If we had confidence after a thorough investigation of the facts that the President clearly did not obstruct justice, we would so state. Based on the facts and the legal standards, however, we are unable to reach that judgment.”

Finally, the Attorney General emphasized both in his March 24th Letter and at his press conference that Mueller did not find a basis to charge Americans with conspiring with the Russians to affect the 2016 election. In doing so, Barr elided Mueller’s cautions that “[a] statement that the investigation did not establish particular facts does not mean there was no evidence of those facts,” and that because the Special Counsel lacked access to certain witnesses and documents, Mueller “cannot rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the [R]eport.” Instead, Barr exercised selective myopia choosing to emphasize that “there was in fact no collusion” and that “we now know that the Russian operatives who perpetrated these schemes did not have the cooperation of President Trump or the Trump campaign.” Barr’s conclusions may accord with the more restrictive results produced by Mueller’s determination that “collusion” must be read to require conduct that would comport with the definition of “conspiracy” under federal law. But, to most individuals, at some point, the persistently parallel conduct that Mueller found between Russian actions and the activities of the Trump campaign coupled with the “multiple links” that Mueller also uncovered between Russian operatives and members of the Trump campaign suggest that their conduct was coordinated—not coincidentally parallel—even if that “coordination” was not necessarily reflective of the explicit or tacit agreement that, in Mueller’s view, was necessary to establish the elements of the federal crime of conspiracy.

But even apart from Barr’s contorting of the findings found in the Report, a critical question is why Barr felt it was necessary to have a press conference to summarize Mueller’s report at all. In his March 24th Letter to the congressional judiciary committees, Barr insisted that it would not be “in the public’s interest” for him to “summarize the full report” because “[e]veryone will soon be able to read it on their own.” So, if the public’s interest was not served by a CliffsNotes version from Barr three-and-a-half weeks before its release, what—other than a desire to “spin” the Report’s contents in the President’s favor—served the public interest to do so 90 minutes before its release? Yes, the Report itself was to be released shortly, but Barr surely recognized that his commentary would both shape initial perceptions of the Report and be seized upon by the President in his defense—and it was.

Admittedly, the Attorney General has his defenders. In a Lawfare post,[6] Jack Goldsmith, who once oversaw the Office of Legal Counsel at the Justice Department, took a decidedly more generous view of Barr’s actions suggesting that the Attorney General was actually “trying to limit the damage to Article II that has resulted from Trump’s unfathomably stupid, impulsive, self-defeating efforts to wield executive power to control the Russia investigation, and Mueller’s overzealous reading of obstruction law and his odd nontraditional prosecutorial decision in response.”[7] While Goldsmith’s characterizations almost certainly aren’t what Barr’s boss in the Oval Office had in mind when he claimed that Mueller’s Report, as portrayed by Barr, afforded him “total exoneration,” they do provide a more principled, nonpartisan explanation for Barr’s own conduct.

Of course, recognizing such a nonpartisan purpose in the Attorney General’s actions might be more persuasive if Barr—as a private citizen—hadn’t written a memorandum in June 2018 that he sent to Justice Department officials only months before Trump nominated him to succeed Jeff Sessions to lead that same Justice Department.[8] Barr’s unsolicited memorandum offers his detailed analysis of the legal basis for the Special Counsel’s investigation concluding that Mueller’s obstruction inquiry was “fatally misconceived,” even as Barr himself conceded that he was “in the dark about many facts.”[9] One episode that Barr had clearly prejudged before ever seeing any of Mueller’s findings: the future Attorney General wrote in his June 2018 memo that Trump’s asking then-FBI Director James Comey to let go of the investigation into former National Security Advisor Michael Flynn, and then later firing Comey, was within Trump’s powers as head of the executive branch.[10] With this paper trail, it is readily apparent that Barr was possessed of something considerably less than an open mind as he awaited the receipt of the Special Counsel’s Report. For all of his other blemishes as Attorney General, even Jeff Sessions recognized when a conflict of interest dictated his recusal from decision making in matters related to that conflict. How Barr, having already prejudged the Special Counsel’s obstruction of justice inquiry as “fatally misconceived,” nonetheless perceived no conflict in then sitting in judgment on the evaluation and disposition of the results of that effort is a question for which the Attorney General has yet to provide an acceptable answer.[11]

Another consistent Trump apologist, Andrew McCarthy, has offered a considerably more strident defense of the Attorney General and vociferous denunciation of Mueller’s findings, analysis, and conclusions.[12] McCarthy insists that, if Mueller were convinced that the President had obstructed justice, his proper course was to have returned an indictment under seal that, presumably, although violative of the language of the OLC Opinion forbidding indictment of a sitting President, would be faithful to the intent of that Opinion because actual prosecution would await the President’s departure from office.

This approach is both legally and practically specious. Legally, as McCarthy surely knows, the governing OLC Opinion forbids “the indictment or criminal prosecution of a sitting President” precisely because either action “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions” in violation of “the constitutional separation of powers.” No exception is made for an indictment under seal since, as a practical matter, the existence of such an indictment would have precisely the same intrusive impact on the sitting President’s performance of his constitutional duties.[13]

Ultimately, McCarthy’s legal contortions are revealed as eyewash for his basic contention: that the histrionics surrounding the handling of the Mueller Report are the product of nothing more than partisan politics. According to McCarthy, Mueller was compelled to write a report because Democrats insisted that DoJ regulations required one, and then those same House Democrats abandoned the confidentiality that was intended to limit access to such a report solely to eyes within the Justice Department by insisting upon congressional access to parts, like grand jury information, for which disclosure is forbidden by congressional statute.[14] When Barr justifiably, in McCarthy’s view, balked, House Democrats held him in contempt.

McCarthy’s hyper-partisan analysis essentially brings us current in the ongoing debate, even if the path he takes is, to be charitable, considerably overwrought. The revelation of Mueller’s March 27th letter to Barr came a day prior to the Attorney General’s scheduled May 1st testimony before the Senate Judiciary Committee and, in the eyes of some, spared Barr the embarrassing prospect of having its existence disclosed for the first time in a public congressional hearing. In his May 1st testimony before the Republican-controlled Senate Judiciary Committee, Barr defended his handling of the Mueller Report and, more generally, strongly asserted that his actions, and any subsequent matters regarding the handling of the Report, are his prerogative as Attorney General.

Following Barr’s Senate testimony, Senate Majority Leader Mitch McConnell presumptuously announced, “Case Closed,” signifying his view that the probe into Russian election interference, Trump campaign activities, and possible Presidential obstruction of justice was concluded. As McConnell presumably knows despite his attempt at glibness, this is quintessential wishful thinking.

Barr was scheduled to testify before the House Judiciary Committee the next day (May 2), but, expressing disagreement with the questioning format intended for that session, failed to appear. On May 8, 2019, the House Judiciary Committee voted to hold Barr in contempt for his failure to comply with a committee-issued subpoena that directed production of the unreacted Mueller Report and supporting documentation. That same day, President Trump invoked executive privilege to preclude production of any further materials related to the Special Counsel’s investigation. Consequently, absent a material change in the positions currently espoused by the executive and legislative branches, the next stages of the multiple confrontations related to the Special Counsel’s investigation are likely to be decided in the courts.[15]

What to Expect as the Sparring over the Mueller Report Moves to the Courts

As the disputes related to the Special Counsel’s investigation, the evidence procured in that investigation, and the Report of its activities, findings, and conclusions move to the courts, the principal points of contention are likely to center on the issues of grand jury secrecy and executive privilege.[16] In the area of grand jury secrecy, the courts, particularly those in the District of Columbia where issues related to the Special Counsel’s grand jury matters will be litigated, are unlikely to be generous to congressional demands that seek information clearly within the scope of the grand jury secrecy rule—Federal Rule of Criminal Procedure 6(e).

Grand Jury Secrecy and Federal Rule of Criminal Procedure 6(e)

Rule 6(e) protects the secrecy of grand jury proceedings by specifically designating those persons, including, inter alia, grand jurors and “attorney[s] for the government,” who “must not disclose a matter occurring before the grand jury” unless the Federal Rules of Criminal Procedure “provide otherwise.” The prohibition is indefinite (i.e., the secrecy is not eliminated merely because a grand jury has completed its investigation by either issuing an indictment or declining to do so). While Rule 6(e) contains a series of exceptions to the general rule of grand jury secrecy, none of those exceptions specifically extend to permitting disclosure of grand jury matters to Congress—with or without a court order.[17]

Since the Attorney General is an “attorney for the government” within the meaning of Rule 6(e), he is bound by Rule 6(e)’s obligation not to disclose grand jury “matter[s].” That term, however, is not defined in Rule 6(e) and has been the subject of sometimes unclear and contradictory judicial constructions. Generally, courts have viewed “matter[s] occurring before the grand jury” as encompassing any information that “would tend to reveal some secret aspect of the grand jury’s investigation,” such as “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of jurors, and the like.” Under this broad umbrella, particular categories of information clearly constitute grand jury “matter[s],” while other categories may hinge on the specific factual context in which a request is made and the use to which a grand jury is put in the investigation at issue. By way of example, actual transcripts of proceedings and witness testimony, as well as written “summaries” or “discussions” of the proceedings, are grand jury matters. So, too, are the details of a grand jury’s composition and focus. But general statements about prosecutors’ deliberations, independent of the grand jury, may not constitute grand jury matters, nor may notes or other memorializations of witness interviews conducted before a grand jury subpoena is issued (e.g., FBI form FD-302, the well-known FBI “302” form used to record witness interviews).

The application of Rule 6(e) to allow for disclosure of grand jury matters to Congress has produced conflicting conclusions by the courts.  Most recently, and significantly, the federal court of appeals in the District of Columbia has ruled that the disclosure of grand jury matters is explicitly governed by the text of Rule 6(e) which, as noted earlier, does not include an exception for disclosures to Congress.[18] Thus, the federal court of appeals in the jurisdiction with authority over the grand jury matters related to the Special Counsel’s investigation has taken a position that parallels the Justice Department’s, i.e., that grand jury matters may be released to Congress only if disclosure is explicitly permitted under Rule 6(e).[19]

Again, however, Rule 6(e) governs disclosure solely of “a matter occurring before a grand jury.“ Particular challenges often arise in the context of documents such as business records that have been subpoenaed or considered by the grand jury, but do not on their face relate to the grand jury itself. In general, “[t]here is no per se rule against disclosure of any and all information which has reached the grand jury chambers,”[20] and thus “[t]he mere fact that information [or documents have] been presented to the grand jury” does not bar independent disclosure in other proceedings.[21] However, utilizing various (and sometimes conflicting) tests, courts have acknowledged that independently generated documents presented to a grand jury may sometimes constitute “matters occurring before the grand jury” in a particular case if the context of a request would make production revelatory of the substance of the grand jury’s investigation. For instance, a request for “documents subpoenaed by the grand jury” might impermissibly call for disclosure of grand jury matters, as production “would reveal to the requester that [the documents] had been subpoenaed” and potentially suggest the focus of the grand jury’s investigation.[22] Conversely, a request for documents presented to a grand jury, when coupled with broader requests for “all evidence” or documents related to a factual matter, would not necessarily call for disclosure of grand jury matters if production would leave the requester unable to “determine which documents,” if any, “had been submitted to the grand jury.”[23] The framing of a particular request for documents, and the context in which the request is made, will thus impact whether documents presented to or obtained by a grand jury are considered “matters occurring before” it within the meaning of Rule 6(e).[24]

From this discussion of Rule 6(e), two major conclusions are discernible as the sparring over the redacted parts of the Mueller Report continues: (1) a recent decision by the federal appeals court with jurisdiction over the Special Counsel’s grand jury matters[25] narrowly construes the scope of the exceptions to grand jury secrecy contained in Rule 6(e) and aligns with the narrow construction afforded Rule 6(e) by the Justice Department; and (2) the other voluminous jurisprudence governing grand jury secrecy provides significant interpretive latitude to the “attorney for the government” in deciding whether materials requested “disclose a matter occurring before the grand jury” such that disclosure is barred by Rule 6(e). For matters relating to the Special Counsel’s investigation, that interpretive latitude lies with Attorney General William Barr. So, if you are counting on congressional subpoenas to pry open the door shielding those portions of the Mueller Report protected by grand jury secrecy, the law, generally speaking, is not on your side.

Nonetheless, no discussion of grand jury secrecy would be complete without noting that witnesses appearing before a grand jury are not included among those persons listed in Rule 6(e) who may not “disclose a matter occurring before the grand jury.” Thus, Rule 6(e) does not impede congressional subpoenas seeking the personal appearance and testimony of Robert Mueller and those questioned as part of his investigation—including those individuals who actually testified before the Special Counsel’s grand jury. Unless … that testimony is shielded from disclosure by a proper invocation of executive privilege.

Executive Privilege

On May 8, 2019, as the House Judiciary Committee was considering holding Attorney General William Barr in contempt for failure to comply with a congressional subpoena demanding production of an unredacted version of the Mueller Report, the Trump administration invoked executive privilege to bar disclosure of precisely those matters redacted from the version of the Mueller Report released on April 18, 2019.

Executive privilege is an implied—rather than textually explicit— constitutional doctrine arising from separation of powers considerations that has been given definition more by historical practice than by judicial decision. Under guidance found in a memorandum issued during President Reagan’s administration and that has never been revoked, the ultimate decision on the assertion of the privilege is left to the President’s judgment. Thus, the assertion of executive privilege over the Special Counsel Report was made directly by President Trump, announced by the Justice Department, and attributed to the House Judiciary Committee’s “blatant abuse of power . . . leaving the President no other option than to make a protective assertion of executive privilege.”

The Supreme Court’s only robust discussions of the privilege occurred in two cases in the 1970s involving Richard Nixon’s communications and records. In the seminal case of United States v. Nixon,[26] the Court considered the famous grand jury subpoena issued by Special Prosecutor Leon Jaworski for Oval Office recordings of conversations between the President and his advisors. In Nixon, the Court recognized the constitutional dimensions of executive privilege for the first time, holding that the need to protect the confidentiality of Presidential communications relating to the “discharge of a President’s powers” is “constitutionally based” and “inextricably rooted in the separation of powers.” Simultaneously, however, the Court took care to note that the protection for Presidential communications is a qualified one, holding that “absent a need to protect military, diplomatic, or sensitive national security secrets,” President Nixon’s “generalized interest” in the confidentiality of his communications was overcome by the judiciary’s “demonstrated, specific need” for evidence in a pending trial.

Three years later, the High Court reaffirmed the scope and qualified nature of executive privilege. In Nixon v Administrator of General Services,[27] at least insofar as the privilege related to Presidential communications and records where then-former President Nixon asserted executive privilege in response to new legislation seeking to subject those records to screening and cataloguing by executive branch archivists, the Court determined that Nixon’s claim of “Presidential privilege clearly must yield to the important congressional purposes of preserving the materials.”

Not surprisingly, given that executive privilege is not governed by bright-line rules and few judicial decisions have sought to define the parameters of the doctrine, the executive and legislative branches have sometimes taken divergent views of the privilege’s scope. Congress has generally interpreted executive privilege narrowly, limiting its application to the types of confidential Presidential communications referenced by the Supreme Court; conversely, the executive branch has historically viewed the privilege more broadly, providing protections to several categories of documents and communications that arguably implicate executive branch confidentiality interests. Under the broader executive branch interpretation, the privilege covers not only communications involving the President or his close advisors, but also deliberative communications within executive branch agencies; military, diplomatic, and national security information; and information from law enforcement files such as evidence gathered in an investigation and communications related to investigative and prosecutorial decision-making.

The Supreme Court has not addressed executive privilege in any substantial way since those Nixon cases decided in the 1970s, and has never addressed the invocation of executive privilege in the context of withholding information sought in a congressional investigation. The most significant judicial analysis of executive privilege in that setting is the D.C. Circuit’s decision in Senate Select Committee on Presidential Campaign Activities v. Nixon[28] where a congressional committee sought to obtain Nixon’s Oval Office recordings as part of that committee’s investigation into the 1972 Presidential election. Although ultimately siding with the Presidential invocation of privilege, the D.C. Circuit emphasized that a President’s assertion of the privilege could be overcome by a “strong showing of need by another institution of government” while elaborating that Congress, in the exercise of its investigative powers, may overcome a President’s presumptive privilege only when it can show that “the subpoenaed evidence is demonstrably critical to the responsible fulfillment of the [Select] Committee’s function.”[29]

That concept of function embraces two distinct forms of congressional activity: the legislative function, and the oversight function. If a federal court ultimately is called upon to determine whether executive privilege has been properly invoked in the case of the subpoena for the unredacted Mueller Report, the balancing test applied will weigh whether the presumptively valid invocation of executive privilege is overcome by “the nature and appropriateness of the function in the performance of which the material was sought, and the degree to which the material was necessary to its fulfillment.”[30] If nothing else, such an inquiry will bring the court to the edges of the tectonic plates that, respectively, represent the powers exercised by two of the three co-equal branches of government established in the Constitution.

Before reaching that constitutional precipice, however, a court will likely need to initially ascertain whether this President’s invocation of privilege was timely asserted. Generally, privileges are invoked in advance of any disclosure if only because, from a practical standpoint, such timing is the only way to guarantee that no disclosure is made. Moreover, in many contexts (e.g., attorney/client privilege, Fifth Amendment invocations), the failure to assert the privilege in a way that prevents any disclosure potentially risks a complete waiver of the protections afforded by the particular privilege. Thus, for example, with respect to that part of the congressional subpoena seeking documents and testimony from former White House counsel Donald McGahn, many commentators have argued that executive privilege has been waived because McGahn testified for over 30 hours in the Special Counsel’s investigation and much of what he disclosed has already been revealed in the Mueller report. On the other hand, the Attorney General emphatically declared, during his May 1, 2019 testimony before the Senate Judiciary Committee, that there has been no waiver of executive privilege and, not surprisingly in this relatively untested area of the law, there is precedent available to Barr for such a pronouncement. Consequently, aside from the substantive parameters of executive privilege, the question of its timely assertion will almost certainly also be fodder in the coming litigation.

A Conclusion (at least for now)

Offering any prediction as to how these many legal issues implicated by the congressional subpoena for the unredacted Mueller Report (or, for that matter, any of the other congressional subpoenas issued or to be issued in pursuit of information about all manner of Trump activities) will be resolved would be pure speculation. What is assured is that, much to Mitch McConnell’s apparent disappointment, the Mueller “case” is anything but “closed.”

Also assured is that the pace of the nearly two-year Mueller investigation will look supersonic compared to progress in the courts. It is feasible, if not likely given the inevitability of appeals, that most, if not all, of the legal fights to come will never reach a final judgment before the 2020 Presidential election—when an entirely different but perhaps more meaningful judgment will be rendered. Until then, the partisan squabbling and litigious skirmishing will go on. After all, in today’s America, all politics are litigated and no matter is left solely to the verdict of public opinion and the punishment of social opprobrium.

*About the author: George W. Croner, a Senior Fellow at FPRI, previously served as principal litigation counsel in the Office of General Counsel at the National Security Agency. He is also a retired director and shareholder of the law firm of Kohn, Swift & Graf, P.C., where he remains Of Counsel, and is a member of the Association of Former Intelligence Officers.

Source: This article was published by FPRI

[1] George Croner, The Mueller Report is a Sobering Recounting of Foreign Election Interference and Presidential Conduct: What Comes Next is (Mostly) Politics, FPRI E-Notes, April 24, 2019.

[2] Letter from the Attorney General William Barr to The Honorable Lindsey Graham and The Honorable Jerold Nadler (March 24, 2019). As contemplated by Department of Justice regulations, the Attorney General’s letter was sent to the chairmen and ranking members of the Senate and House Judiciary Committees. See 28 C.F.R. § 600.9.

[3] Mueller’s letter to the Attorney General is dated March 27, 2019, and was delivered to the Justice Department the next day.

[4] A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000 OLC Op.) (the “OLC Opinion”).

[5] See, id.

[6] Jack Goldsmith, Thoughts on Barr and the Mueller Report, Lawfare, May 4, 2019.

[7] Id.

[8] Memorandum from Bill Barr to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, Re: Mueller’s “Obstruction” Theory (June 8, 2018).

[9] Eli Watkins, Barr authored memo last year that ruled out obstruction of justice, CNN Politics, March 26, 2019.

[10] Id.

[11] Barr’s actions might also be viewed as more principled had he taken a stand on a variety of important policy matters as to which he has remained either silent or, worse, misguided. It would have been welcome to see the Attorney General acknowledge Mueller’s disconcerting findings about the scope of Russian election interference and urge necessary reforms and vigilance in advance of the 2020 election. It would have been equally gratifying to have the Attorney General defend his own Department and point out, unhesitatingly, that the FBI’s failure to investigate that same Russian interference and follow that inquiry as far as the facts extended would have represented an abdication of its counterintelligence responsibilities. He did neither of those things and, in that failure, he has only exacerbated the perception that, in this Administration, the Department of Justice is neither independent nor apolitical; but, instead, serves principally as a political backstop for the President of the United States.

[12] Andrew C. McCarthy, Mueller’s Preposterous Rationale for Tainting the President with ‘Obstruction’ Allegations, National Review, May 8, 2019.

[13] Remarkably, McCarthy apparently assumes that an indictment under seal of a sitting President of the United States could, as a practical matter, remain secret until he leaves office. Now, that assumption is, to borrow one of McCarthy’s descriptives: preposterous. Surely, McCarthy must recognize that this is the paradigm of a type of secret that, as Benjamin Franklin pithily noted, “three can keep – if two of them are dead.”

[14] Andrew C. McCarthy, Mueller’s Preposterous Rationale for Tainting the President with ‘Obstruction’ Allegations, National Review, May 8, 2019.

[15] The fracas over the demand by the House Judiciary Committee for the unredacted Mueller Report, former White House counsel Don McGahn’s notes, and the anticipated demand for testimony from Mueller, McGahn and, possibly, others considered relevant to the Special Counsel investigation is only part of multiple efforts by House Democrats to pursue inquiries related to Trump’s activities. Separately, for example, the House Ways and Means Committee has issued a subpoena for 6 years of the President’s federal tax returns. The White House has vowed to fight all these congressional subpoenas, labeling them “Presidential harassment.” Presumably, this includes the subpoena compelling the appearance of Donald Trump, Jr. recently issued by the Republican-controlled Senate Intelligence Committee.

[16] As the Special Counsel outlined in his Report, the investigation spawned 14 separate prosecutorial referrals, only 2 of which have been publicly identified. Certain redactions in the Report apparently relate to these ongoing investigative matters. It is highly unlikely that either Congress, or the courts, will jeopardize these ongoing proceedings by compromising the privilege that protects against the disclosure of information concerning ongoing law enforcement investigations.

[17] Previous consideration of adding a Rule 6(e) exception to permit disclosure of grand jury matters to Congress has foundered in the face of separation of powers contentions that such an exception would impermissibly intrude upon prosecutorial functions committed exclusively to the executive branch.

[18] McKeever v. Barr, No. 17-5149 (D.C. Cir. April 5, 2019).

[19] In the context of the Special Counsel’s investigation into Russian interference in the 2016 election, one potentially relevant exception to Rule 6(e) permits an attorney for the government to disclose any grand jury matter involving threats of attack or intelligence gathering by foreign powers to “any appropriate federal . . . government official.” Fed. R. Crim. P. 6(e)(3)(D). Although an “appropriate” government official could arguably include a Member of Congress, disclosure under this exception would be limited: only grand jury information concerning the specified subject matter would be available, at the discretion of the “attorney for the government.” Despite the continuing threat of Russian interference in the American electoral process, it seems unlikely that this exception will motivate the Attorney General to provide Congress with the information sought by congressional subpoenas—particularly those subpoenas focused on the materials related to the “obstruction of justice” facet of the Mueller Report.

[20] Senate of Commonwealth of P.R. v. Dept. of Justice, 823 F.2d 574, 582 (D.C. Cir. 1987).

[21] Labow v. Dept. of Justice, 831 F.3d 523, 529 (D.C. Cir. 2016).

[22] Id.

[23] Senate of Commonwealth of P.R. v. DoJ, 823 F.2d at 583.

[24] See, generally, Michael Foster, Todd Garvey, The Special Counsel’s Report: Can Congress Get It?, Congressional Research Service, April 9, 2019.

[25] McKeever v. Barr, No. 17-5149 (D.C. Cir. April 5, 2019).

[26] U.S. v Nixon, 418 U.S. 363 (1974).

[27] Nixon v. Administrator of General Services, 433 U.S. 425 (1977).

[28] Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).

[29] Id. at 731.

[30] Id.

 

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