Given that President Donald Trump’s private and public frustrations with his first Attorney General revolved around Special Counsel Robert Mueller’s investigation, it’s no surprise that the ongoing investigation took center stage on Tuesday, as Trump’s nominee to serve as his second Attorney General testified before the Senate Judiciary Committee. While nominee William Barr appeared to express his intent to allow Mueller to complete his work, Barr didn’t answer the key question of whether he’d make Mueller’s final report public—or, if he did, his answer missed the mark.
The first key comment from Barr on this important issue came in response to Sen. Richard Blumenthal (D-Conn.): “There are two different reports. Under the current regulations, the special counsel report is confidential. The report that goes public would be a report by the Attorney General.”
Barr’s correct that the special counsel regulations anticipate two different reports, or at least two different types of reporting. The first type of reporting goes from the Special Counsel to the Attorney General and is indeed at that stage confidential, as Barr suggests. As the regulations explain, “At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” The second type of reporting goes from the Attorney General to Congress, and is triggered by the Attorney General appointing or removing a special counsel and also upon conclusion of the special counsel’s investigation, at which point the Attorney General must inform Congress of any instances in which the Attorney General rejected an action proposed by the special counsel, as the regulations also explain. The Attorney General reports are no substitute for the Special Counsel report. The formal commentary that accompanied issuance of the special counsel regulations, for instance, describes the Attorney General reports as “brief notifications, with an outline of the actions and the reasons for them.”
The big question concerns the public release of the first type of reporting. Many commentators have focused on the language in the special counsel regulations that follows: “The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” This “public interest” standard applies here to the release to the public of the types of reporting required by the regulations to go from the Attorney General to Congress—the second category discussed in the previous paragraph. And, to Barr’s credit, he anticipated applying the standard such that this reporting to Congress would become “public” if any such reporting is triggered in the first place.
But Barr errs in describing the first type of reporting as “confidential” as the last word. It’s true that the report provided is confidential as it goes from the Special Counsel to the Attorney General; and the regulation’s formal commentary explained that this confidentiality was an effort to accommodate privacy interests and to ensure that a special counsel wouldn’t feel pressure to investigate endlessly lest a public accounting be subject to criticism for any gaps in it. Note that the confidentiality provision is specific to the Special Counsel’s final report that explains decisions to prosecute or to decline to prosecute individuals. Mueller may in fact file with the Attorney General other kinds of reports, such as one concerning the counterintelligence findings of any collusion with Russia. Still, the real question isn’t about what goes from the Special Counsel to the Attorney General; it’s what happens next.
That is, the Attorney General presumably will receive from the Special Counsel a report of intense public interest—in Mueller’s case, a report that may illuminate connections between the Trump campaign and Russia in the lead-up to Election Day 2016. What can and should an Attorney General do with this report? Or, to put it more precisely, after redacting in the report anything that cannot be released publicly based on objective standards applied to other government releases of information—perhaps classified or law enforcement sensitive information, or perhaps information relevant to other ongoing investigations—can and should the next Attorney General share Mueller’s findings with the American people?
When pressed on this by Sen. Dianne Feinstein (D-Calif.), Barr’s response was indeterminate. Here it is in full:
Well, the regs do say that Mueller is supposed to do a summary report of his prosecutive and his declination decisions, and that they will be handled as a confidential document, as are internal documents relating to any federal criminal investigation.
Now, I’m not sure—and then the A.G. has some flexibility and discretion in terms of the A.G.’s report.
What I am saying is, my objective and goal is to get as much as I can of the information to Congress and the public. And these are departmental regulations. And I’m going to be talking to Rod Rosenstein and Bob Mueller. I’m sure they have had discussions about this. There’s probably existing thinking in the department as to how to handle this. But all I can say at this stage, because I have no clue as to what’s being planned, is that I am going to try to get the information out there consistent with these regulations. And to the extent I have discretion, I will exercise that discretion to do that.
The most generous reading of Barr’s response emphasizes Barr’s indication that his “objective and goal is to get as much as I can of the information to Congress and the public.” But his response also suggests that the report “will be handled as a confidential document,” and is caveated by Barr’s musing as “to the extent I have discretion” to release it.
Let’s be clear: the Attorney General has such discretion—and not only to release “information” about the report but also to release the report itself. Indeed, the report, once delivered confidentially and redacted as may be appropriate, is in a sense like any other Justice Department document: it’s in the discretion of the Attorney General to share it with Congress and the public. Indeed, that’s what the very next sentence of the Special Counsel regulations seems to suggest: “All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.” That language seems to anticipate that someone at the Department of Justice—such as the Attorney General’s spokesperson—may end up releasing information “concerning matters handled by Special Counsels.” That language also suggests that the Special Counsel and his staff can, if they so choose, have a direct role to play in initiating the process of publicly releasing information about their work, even if ultimately the decision about whether to do so belongs to the Attorney General just as it would for any Justice Department public release.
And what standard should be applied to assessing whether that release should occur? I can’t think of a better one than the Special Counsel regulations already offer for the Attorney General’s own required reporting to Congress: whether release “would be in the public interest.” Indeed, the principal drafter of the special counsel regulations, Neal Katyal, has also suggested that this should be the standard for the release of Mueller’s final report to Congress.
Of course, if that’s the test, the answer seems pretty clear as to Mueller’s work—especially with recent polling showing 76% of Americans thinking that his findings should be released to the public.
There’s another wrinkle confirmed by reporting over the weekend in the New York Times that Mueller had, at least initially, taken over a counterintelligence investigation, including into President Trump after he fired former FBI Director James Comey. As quoted above, the special counsel regulations anticipate a traditional criminal investigation and, in turn, anticipate a final report to the Attorney General “explaining the prosecution or declination decisions reached by the Special Counsel.” But, as my Just Security colleague Asha Rangappa explained in the Washington Post, counterintelligence investigations often don’t culminate in decisions to prosecute or to decline to prosecute as tidily as traditional criminal investigations. But presumably the Special Counsel will want to report on the counterintelligence findings to the Attorney General. And, to whatever extent it can be shared publicly, that element of the report would certainly seem of significant public interest, even if the public release of information about a counterintelligence investigation would be decidedly unusual—but so are our current circumstances. So, consistent with protections for classification and ongoing intelligence collection or disruption operations, this distinctive aspect of Mueller’s work seems to lend additional weight to the public interest in seeing his findings.
Ultimately, it’s unclear whether Barr was indicating on Tuesday that the Attorney General doesn’t have discretion to make the Special Counsel’s report to the Attorney General public in some form, or suggesting that the next Attorney General will have to use that discretion wisely. Simply put, 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. Perhaps at least one Senator will seek clarity on this important point through forthcoming questions for the record.