William Barr, President Donald Trump’s nominee for Attorney General, released his opening statement today through the Department of Justice for tomorrow’s confirmation hearing before the Senate Judiciary Committee. In it, he committed to transparency for the Mueller investigation.
Or did he?
Here’s the paragraph in question:
Second, I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.
Pay close attention to this part: “my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law.”
As legal caveats go, these phrases are relatively innocuous on their face. They even come across as virtuous. After all, we want our Attorney General to make decisions based solely on the law, right? And nobody wants him to do things that are not consistent with the law.
However, coming from someone who worked as Assistant Attorney General in charge of the Office of Legal Counsel (OLC), these words mean something more nuanced, especially when that someone is William Barr. In 1989, Barr wrote an OLC opinion for Executive Branch general counsels entitled “Common Legislative Encroachments on Executive Branch Authority.” In this case, you can judge a book by its cover. Specifically consider this advice:
Congress consistently attempts to obtain access to the most sensitive executive branch information and is not always receptive to arguments that the executive branch, like Congress and the courts, must enjoy some measure of protection for confidential exchanges of information if it is to function effectively. Last month, this Office provided you with a memorandum that focused on executive privilege. In addition to overt efforts to obtain privileged information, Congress often includes in bills language that purports to require that “all information” or “all reports” regarding a specific subject be made available to a particular congressional committee or other entity that is not part of the executive branch. Such efforts should be resisted, however, as an unconstitutional encroachment on the President’s constitutional responsibility to protect certain information. Therefore, it should always be recommended that such provisions include the phrase “to the extent permitted by law.” A typical statement of this Department’s position regarding a requirement to make available any or all information and reports is as follows:
The Department objects to the breadth of this amendment and its failure to recognize the President’s constitutional right and duty to withhold from disclosure certain information. The President must retain the authority to withhold in the public interest information whose disclosure might significantly impair the conduct of foreign relations, the national security, the deliberative processes of the executive branch or the performance of its constitutional duties. Accordingly, the Department recommends that the committees’ right to obtain such information be qualified by the phrase “to the extent permitted by law.”
So, when Barr says that he will provide as much transparency as he can “consistent with the law,” is he promising transparency or not? In his OLC opinion, he complained about congressional attempts to get access to information covered by executive privilege, and then he specifically prescribed that agencies should always insist on the inclusion of the code phrase “to the extent permitted by law” in any bill containing a reporting requirement.
This code language would signal that agencies could cite executive privilege to withhold any information “whose disclosure might significantly impair the conduct of foreign relations, the national security, the deliberative processes of the executive branch or the performance of its constitutional duties.”
At first blush, this doesn’t look like that crazy an idea, but the reality of the situation is more complicated. Executive privilege is a constitutional privilege, and any privilege that would protect information about “the deliberative processes of the executive branch or the performance of its constitutional duties” would be a common law privilege. As John Bies summarized in Lawfare and the Constitution Project explained in significantly greater detail, while common law privileges can be used to withhold such information from courts or the public, they cannot be relied upon to withhold information from Congress.
In fairness, this is not a new position for DOJ to take. In fact, as Bies notes, this is a pretty consistent position for OLC. It shows up in a lot of opinions across administrations. So, when Barr wrote that OLC opinion, he was not signaling a radical change in the Executive Branch’s position, or even an incremental one. What he did do, however, was include a specific prescription for the problem he described.
Which brings us back to his confirmation hearing. In light of this history, we have to wonder: if Barr is using the very code words today that he told Executive Branch lawyers 30 years ago to use to signal that they intended to adopt an expansive view of executive privilege where Congress was concerned, is he really promising to be transparent or just being transparent about his promises?
IMAGE: U.S. Attorney General nominee William Barr, center, arriving for one of his meetings with Senate Judiciary Committee members on Capitol Hill Jan. 9, 2019, in Washington, DC. (Photo by Chip Somodevilla/Getty Images)