Barr Could Block Mueller Report Release But Would Risk Backlash
(Bloomberg) -- Attorney General nominee William Barr could prevent Special Counsel Robert Mueller’s final report from being shared directly with Congress or the public, but that would probably fuel political turmoil and court challenges, according to current and former Justice Department officials.
“Under the current regulations, the special counsel report is confidential,” Barr, President Donald Trump’s nominee, told the Senate Judiciary Committee during his confirmation hearing Tuesday. “The report that goes public would be a report by the attorney general.”
Barr’s justification for keeping Mueller’s findings from the public appears to rest on a technical reading of federal regulations governing special counsels, as well as Justice Department policy for handling criminal and counterintelligence investigations, the officials said. Barr said he would probably write his own report to share with Congress and the public but didn’t specify what would be in it.
But given the significance of Mueller’s investigation -- and the impassioned debate over a probe Trump regularly denounces as a “witch hunt” -- Barr could face enormous political and public pressure against providing only a secondhand account of the findings.
The issue emerged as a major dividing line over Barr’s confirmation, even as he appeared headed toward the majority vote he’d need in the Republican-controlled Senate.
Senate Democratic Leader Chuck Schumer of New York met with Barr on Wednesday and said afterward that he would vote against confirming him, in part because the nominee would commit only to transparency as a principle. Schumer said Barr refused to pledge he’d release Mueller’s full report minus only information that intelligence officials said would compromise confidential sources.
“That’s not good enough with this president” who “has treated the Justice Department as his personal toy” and “has tried to browbeat it,” Schumer told reporters at the Capitol.
Republican Senator Lindsey Graham of South Carolina, the Judiciary Committee’s chairman, said he’d be fine with an account from Barr of Mueller’s findings.
“I will trust him to give me a good summary of it,” Graham, who said his committee may vote on Barr as soon as next week, said in an interview. “The regulation says the report is to be treated as if it was a recommendation about a criminal disposition. When a prosecutor goes and talks to their boss you don’t put that out in the public. His goal is to give us as much information as possible about the Mueller report.”
Mueller is investigating Russia’s interference in the 2016 election, whether Trump or any of his associates conspired in the operation and whether Trump obstructed justice. Some critics say Trump chose Barr -- who takes an expansive view of presidential power -- to be attorney general because he’d help protect the president.
“I will commit to providing as much information as I can consistent with the regulations," Barr said during his confirmation hearing. He also vowed that “I will not be bullied into doing anything I think is wrong -- by anybody, whether it be editorial boards or Congress or the president.”
But he gave conflicting answers about how he’d handle Mueller’s findings. While he told senators he planned to release his own report, he also said at one point that he’d need to find out whether Mueller and Deputy Attorney General Rod Rosenstein already have a plan for handling the investigative findings.
Barr also took a position in his testimony that could lead him to exclude criticism of Trump from any public report in light of the Justice Department’s policy that a president can’t be indicted while in office.
“If you’re not going to indict someone, then you don’t stand up there and unload negative information about the person," Barr said. “That’s not the way the Department of Justice does business.”
Ironically, Barr offered that opinion in finding fault with former FBI Director Jim Comey, who aired publicly his criticism of Democrat Hillary Clinton in 2016 for her use of a private email server even as he said no prosecutor would pursue a criminal case against her.
Justice Department regulations for special counsels say that the attorney general must be given “a confidential report explaining the prosecution or declination decisions reached by the special counsel.” They also say the attorney general may make public reports about the special counsel’s work.
Beyond that, the regulations require only that the attorney general provide the Senate and House Judiciary panels with a description and explanation of any instances when the special counsel was prevented from taking certain actions.
Until now, it’s been widely assumed that Mueller’s findings would be shared with Congress and made public in some form.
Barr should commit to consulting with Mueller about what can be shared with Congress and the public, said Mimi Rocah, a former prosecutor for the U.S. attorney’s office in the Southern District of New York.
“He’s hiding behind the regulations right now," Rocah said in a phone interview. “Mueller’s not going to suggest any information should become public or go to Congress that shouldn’t based on the law."
“Judgments are going to have to be made, and there are a lot of considerations," Rocah said. "But isn’t Mueller the one who should be making decisions about what information can be released?”
There are legal and legitimate reasons to keep some material confidential, such as matters pertaining to grand jury secrecy, counterintelligence investigations and ongoing law enforcement operations.
But the public interest should require Barr to lean toward releasing as much as possible, Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection, wrote in a blog post Wednesday.
"Simply put,” said Geltzer, a former Justice Department official, “the next attorney general does have that discretion; and sharing the special counsel’s findings, at least in some form, with an American public hungry for them seems a sound exercise of discretion indeed."
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