What Has to Happen For Mueller’s Report to Become Public
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 to reporters on Thursday on condition of anonymity to discuss internal deliberations. “If he doesn’t, then that amounts to a cover-up,” the staffer said. A separate Democratic staffer said that, in a call with the 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 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 in the Mueller probe. 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.”