The Fight for the Mueller Report Could Get Ugly Fast

(Bloomberg Opinion) -- Get out your popcorn. Or settle in for a long, drawn-out legal battle.

Democrats on the House Judiciary Committee gave Representative Jerrold Nadler some muscle Wednesday in the ongoing tug of war over Special Counsel Robert Mueller’s Russia report. Nadler now has the power, if he chooses, to subpoena the Justice Department and require it to turn over a 400-page report detailing what Mueller discovered when he investigated President Donald Trump and his team’s intersection with Russia during and after the 2016 presidential campaign.

This could play out quickly — or very, very slowly — depending on how aggressive Nadler decides to be and how Attorney General William Barr responds. Barr has promised to turn over a redacted version of the report by mid-April; Democrats worry that waiting that long gives Barr too much time and latitude to decide what should and shouldn’t be disclosed.

If Barr insists on more time, and Nadler unleashes his subpoena, Barr may still resist, setting up a legal battle that could find its way to the Supreme Court.

The White House itself has other cards to play as well, including asserting that some parts of the Mueller report pertain to the presidency’s internal processes and deliberations and are therefore protected by executive privilege and are, presto, subpoena-proof.

Should Trump go in that direction, he is likely to find an ally in Barr. In 1989, Barr, prior to becoming George H.W. Bush’s attorney general, wrote a Justice Department memo in which he argued that if congressional requests for confidential executive-branch information couldn’t be accommodated and Congress issues a subpoena, then it may become “necessary for the President to consider asserting executive privilege.” Barr cited legal precedent in arguing that Congress didn’t have the authority to “inquire into matters which are within the exclusive province of one of the other branches of the Government.”

Rudy Giuliani, Trump’s occasional carnival barker, has said in the past that he was “sure” the president would invoke executive privilege if Democrats sought the Mueller report. In an interview with the New Yorker in September, he said that Trump’s legal team had reached a deal with Mueller in which the White House had “reserved the right to object to the public disclosure of information that might be covered by executive privilege.”

All of this is further complicated by how little the public already knows about Mueller’s decision-making process. One leg of Mueller’s probe — an inquiry into a possible criminal conspiracy involving Trump, his advisers and the Kremlin — appears to have cleared the president and his team of any wrongdoing, according to a cursory outline of the report that Barr recently released.

But Mueller opted not to decide if Trump obstructed justice. In noting that there was ample evidence suggesting that obstruction might have occurred, and in emphasizing that his report didn’t exonerate the president, Mueller apparently left a final call on obstruction to others. Barr then decided that he was the referee, and when he issued his first summary of the report, he concluded that Trump hadn’t obstructed justice. (Barr also allowed, in a second missive he released on Friday, that his first letter was never meant to be a summary or even an “exhaustive recounting” of Mueller’s investigation; it was just a “bottom line” conclusion.)

Given how murky all of this has become in Barr’s hands, it’s understandable that Democrats would like to make their own call about what’s in the Mueller report. And given that Mueller left obstruction of justice on the table, it’s also understandable that Democrats might suspect that Mueller wanted Congress, rather than Barr, to decide whether, in fact, the president had obstructed. But Barr decided to fill a void, and it’s obvious now that trust has withered and that relations between Congress and the Justice Department may have become too poisoned for an “accommodation” to be reached.

It would be simpler for everyone involved for there to be an accommodation, of course. Barr has asked for time to scour a lengthy report and its exhibits for any testimony or evidence that might compromise national security or derail ongoing investigations. Congress could give him the time he needs to do that. Barr, who is apparently a speed reader as he was able to digest Mueller’s massive report over a weekend and then tell Congress and the public how to think about it, shouldn’t need much time to wrap it up. Things aren’t likely to proceed this way, however. Nadler, in a detailed argument that you can read here, says that Congress is entitled to the entire report, without Barr acting as a gatekeeper.

Trump himself could try to be the tiebreaker. He has repeatedly said in interviews and on his Twitter feed that the Mueller report offered him “complete and total EXONERATION” — even though that isn’t what the report says. Nonetheless, if he truly believes that, he can simply direct Barr to release the report immediately. That would save everybody a lot of time and energy.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Timothy L. O’Brien is the executive editor of Bloomberg Opinion. He has been an editor and writer for the New York Times, the Wall Street Journal, HuffPost and Talk magazine. His books include “TrumpNation: The Art of Being The Donald.”

©2019 Bloomberg L.P.

BQ Install

Bloomberg Quint

Add BloombergQuint App to Home screen.