Why it’s a mistake to be a-waitin’ “the” Mueller Report (and why you should instead focus on two other reports)

Last Thursday, the House of Representatives passed a resolution, by a resounding vote of 420-0, calling for Robert Mueller’s Section 600.8(c) report explaining his prosecution and declination decisions—a report he’s required to submit to Attorney General Barr at the “conclusion of [his] work”—to be released to Congress in “full” and to be released to the public “except to the extent the public disclosure of any portion thereof is expressly prohibited by law.”

In a new Op-Ed in the Washington Post I explain that this so-called “Mueller Report” probably won’t see the light of day . . . but that that’s not as troubling as it might appear at first glance, for two reasons.

First, we’ll already know most of what’s in Mueller’s report to Barr, because the information is already right out there in the public record, in the many grand jury indictments and other court filings that already are, or soon will be, widely available.  The only substantive parts of the report that won’t be transparent, then, are Mueller’s explanations of why he chose not to seek indictments of others — possibly including the President.

Second, Mueller’s report to Barr is only one of three or more “reports” that ought to emerge when the Russia investigation ends.  And at least two of those other reports, which will be submitted to Congress and parts of which may well become public, are likely to be far more revealing and more significant than the so-called “Mueller Report”:

(i)  Barr’s own Section 600.9(a)(3) notification to the judiciary committees—which presumably Mueller will have drafted in large part—can be, and should be, a comprehensive account of the Russia investigation, consistent with Barr’s promise to senators in connection with his confirmation hearing that because “it is very important that the public and Congress be informed of the results of the Special Counsel’s work . . . my goal will be to provide as much transparency as I can consistent with the law.”  That report might well reveal a great deal of factual information about President Trump’s actions involving Russia.  We should not expect it, however, to include Mueller’s assessment about whether there are grounds to ask a grand jury to bring criminal charges against Trump after he leaves office, nor to offer any conclusions about whether Trump’s conduct did or did not satisfy the elements of any particular criminal offenses.  Accordingly, as long as Trump is in office it will be up to the committees themselves—and Congress as a whole—to (in the words of the Jaworski road map) “determine what action may be warranted . . . by [the] evidence” presented in Barr’s notification.

(ii) It’s likely, however, that the most important “report” of them all will be the briefing that DOJ must provide to the congressional intelligence committees conveying the results of the counterintelligence investigation Mueller has superintended.  In order to comply with the requirement of keeping those committees “fully and currently informed” of the results of the investigation, that briefing—which will probably include at least some written document—should include Mueller’s assessment, if any, about whether, how and to what extent Trump is compromised or is otherwise unable to perform his constitutional duties on behalf of the nation when it comes to the Russian threat to our electoral system.  Does Trump have financial obligations to Russian interests?  Was he — and does he continue to be —motivated by the prospects of a Moscow Trump Tower?  Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence?  Or is there a more benign explanation for Trump’s otherwise inexplicable conduct regarding Russia and Putin?  The counterintelligence investigation’s answers to these and similar questions — especially its assessment, if any, of the President’s current capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s conduct in 2016-2017 violated any particular criminal statutes.

Of course, the FBI and the intelligence committees rarely disclose the results of counterintelligence investigations to the public, for obvious reasons:  In the ordinary case, much of the information is classified because it could reveal sensitive sources or methods and because there’s an interest in not revealing to the foreign subjects of the investigation what our government has learned about their activities.  This is far from an ordinary case, however.  Congress and the public have a critical need to know whether and to what extent the president is compromised and whether he’s fit to respond to the Russian threat without fear or favor.  It’s therefore safe to assume Mueller will try to convey such information to the committees in a form that permits the greatest possible dissemination consistent with national security imperatives.  At which point it will primarily be the responsibility of the chairs of the committees — Richard Burr (R-N.C.) in the Senate and Adam B. Schiff (D-Calif.) in the House — to assess how much of the information they can and should share with the rest of Congress and the public.

* * * *

In the remainder of this post I’ll try to fill in some of the legal details that space constraints precluded me from including in the Op-Ed, in the context of answering some of the questions the Op-Ed naturally raises.

  1. Should we assume DOJ will submit these reports to Congress, and that they will be disclosed to the public, sometime soon?

No.  Mueller’s report to Barr—and Barr’s subsequent “notification” to the congressional judiciary committees—will only occur “[a]t the conclusion of the Special Counsel’s work.”  To be sure, there are recent signs that Mueller’s investigation might be heading toward its finish.  DOJ has confirmed that Andrew Weissmann, a senior aide to Mueller who’s overseen many of the more important prosecutions, “will be concluding his detail to the special counsel’s office in the near future.”  And David Archey, the lead F.B.I. agent in Mueller’s shop, recently left to become special agent in charge of the Richmond Field Office.

On the other hand, there are many reasons to believe Mueller’s investigation and prosecutions might extend well into the future.  For example, in January, Mueller requested, and the Chief Judge granted, an extension of the D.C. grand jury’s terms for another six months.  Mueller just this week asked a judge to further postpone Rick Gates’ sentencing hearing because Gates is cooperating with “multiple ongoing investigations.”  And although Michael Flynn has finished cooperating with the investigation, prosecutors are seeking to prevent disclosure of some of their memos of his interviews because the information he provided from December 2017 until now is still being used in other ongoing criminal investigations.  Presumably we haven’t yet seen all the results of the cooperation of several other defendants, either.  To be sure, Mueller might not see through to the end all of the prosecutions he’s initiated:  he could very well hand off many or all of them to other DOJ components.  He might, however, want to keep his hand in at least some of them, and he might not be done collecting all the information he’s seeking in the (more important) noncriminal aspects of the counterintelligence investigation he’s supervising.

All of which is to say that the “conclusion” of Mueller’s work—the event that will trigger the requirement of his submission of his Section 600.8(c) Report to Barr—might occur next week, or eighteen months from now, or any time in between (or even later—his investigation need not end during Trump’s current term).  As always, the Golden Rule is that you should not credit any reports of Mueller closing up shop, or submitting his Report to Barr, unless and until you hear it from the Special Counsel’s office itself.

Counterintelligence briefings by Mueller and his team to SSCI and HPSCI, by contrast, can—and should—occur with some frequency, even long before the investigation is over.  (The statutory requirement is to keep the committees “fully and currently” informed.)  So, for example, Andrew McCabe reports in his new book that when the FBI decided to open an administrative “file” on Trump in May 2017, just before Mueller took over the investigation, they briefed the so-called “Gang of Eight” on that development, presumably pursuant to the “fully and currently informed” obligation.  That anecdote illustrates that although there presumably will be a final briefing or report to the intelligence committees when Mueller concludes his counterintelligence duties, there likely have been and will continue to be interim briefings, as well.

  1. Are Mueller and Barr required to submit the report and notification described in the Special Counsel regulations?

Yes.

The DOJ “Special Counsel” regulations, which Attorney General Reno promulgated in 1999, generally govern the conduct of “a lawyer with a reputation for integrity and impartial decisionmaking” who the AG hires from “outside the United States Government,” § 600.3(a), to have “responsibility” for a criminal investigation, id. § 600.1(b), in cases where the AG determines that investigation by a United States Attorney’s Office or litigating Division of the Department of Justice “would present a conflict of interest for the Department or other extraordinary circumstances,” id. § 600.1(a).  Then-Acting Attorney General Rod Rosenstein didn’t appoint Mueller pursuant to the DOJ Special Counsel regulations, however, and therefore they don’t apply of their accord.

Nevertheless, because Mueller’s mandate is in part to investigate possible criminal wrongdoing, Rosenstein decided that some of the DOJ regulations for the conduct of criminal investigations by a “Special Counsel” are to apply to Mueller and to the Attorney General who supervises him.  In his May 17, 2017, Order designating Mueller as a Special Counsel, Rosenstein directed that “Sections 600.4 through 600.10 of Title 28 of the Code of Federal Regulations are applicable to the Special Counsel.”  Those sections include the provisions requiring the report and notification in question.

  1. Can Mueller release his report to the public, as Special Counsel Danforth did in the Waco investigation?

Probably not.

In the resolution it passed last week calling for the public release of the Mueller Report to Barr, the House stated that “in the only other instance where a Special Counsel was appointed under the Special Counsel Regulations (in 1999, concerning the 1993 confrontation in Waco, Texas), both the interim and final reports, including findings, provided by the Special Counsel were released to the public by the Attorney General.”  The House pointed to this precedent in support of its call for Mueller’s Section 600.8(c) report to be released to the public.

The House’s description of the Danforth case isn’t quite factually accurate.  For one thing, Special Counsel Danforth, like Mueller, wasn’t appointed pursuant to the regulations.  And Danforth himself, not the Attorney General, released his interim and final reports.  More importantly for present purposes, the Waco case isn’t analogous to the Mueller case because Danforth—unlike Mueller—“negotiated language [in the AG order appointing him] indicating that he intended to submit his report in a form that would permit, to the maximum extent possible, public dissemination of his findings.” Attorney General Reno’s appointment order for Danforth expressly provided that “[i]n addition to the confidential report requirement under section 600.8(c), the Special Counsel, to the maximum extent possible and consistent with his duties and the law, shall submit to the Attorney General a final report, and such interim reports as he deems appropriate, in a form that will permit public dissemination.”  Rod Rosenstein did not include any similar language in his order designating Mueller.  Accordingly, it doesn’t appear that Mueller has the authority to change the “confidential” nature of his report to Barr.

  1. Is Barr authorized to issue the sort of comprehensive report (“notification”) to Congress that he promised the Senators he would try to make?

Yes.

The preamble to the DOJ Special Counsel regulations states that the AG’s reports to the Judiciary Committees, including the report submitted at the end of the Special Counsel’s investigation, “will be brief notifications, with an outline of the actions and the reasons for them.”  It’s therefore true that Barr isn’t required to provide to the Judiciary Committees much more than a brief explanation of why Mueller’s investigation has ended.  (The notification also must include “a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”  In this case that’s probably a very small or null set.)

But does the preambular statement that the notification “will be brief” prohibit Barr from doing more?  No.  The regulation itself doesn’t purport to limit the AG’s congressional notification to the elements that it expressly requires:  It is, in other words, a floor, not a ceiling, for what can and should be in Barr’s notification.  Nor would such a limitation make much sense:  There’d be no reason for an AG regulation to tie the AG’s own hands in a way that would give him less authority to convey information to Congress in a case handled by a Special Counsel than he would have with respect to any other DOJ investigation.  Moreover, the whole point of this AG notification requirement is to address “[t]he interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel,” and “[t]o help ensure congressional and public confidence in the integrity of the process.”

Accordingly, Attorney General Barr can and should include in his “notification” to the Judiciary Committees whatever factual and evidentiary details he concludes are appropriate to advance those objectives.

Alternatively, let’s look at it this way:  Let’s say that, in addition to his fairly barebones Section 600.8(c) report for Barr, Special Counsel Mueller also writes a much more detailed document setting forth the evidence and some of his findings–say, for example, something more forthcoming than the Jaworski “road map” but less aggressive and conclusory than the Starr Report.  Nothing in the regulations would prohibit Barr from submitting that Mueller “report” to Congress and/or putting it online for all to see, even if he doesn’t include it as part of his own Section 600.9(a)(3) “notification” to the Judiciary Committees.

  1. Does any law or DOJ policy prohibit Barr from including information about unindicted individuals in his notification? Wasn’t Jim Comey criticized for doing just that during the Hillary Clinton investigation?

No.

The DOJ default rule is to preserve the confidentiality of the details of criminal investigations that have not resulted in charges.  As OLC recognized in 1986, however, once an investigation has been closed, many of the considerations that counsel against discussion of open cases “lose some of their force.”  “Access by Congress to details of closed investigations,” OLC explained, “does not pose as substantial a risk that Congress will be a partner in the investigation and prosecution or will otherwise seek to influence the outcome of the prosecution; likewise, if no prosecution will result, concerns about the effects of undue pretrial publicity on a jury would disappear.”  Accordingly, “on occasion the Department has briefed Congress on prosecutorial decisions and has disclosed some details of the underlying investigation, once the investigation has been closed.”

In particular, as last week’s House Resolution notes, DOJ has occasionally “provided investigatory information to Congress and the public concerning investigations of high-level public officials in both pending and closed cases.”  Most frequently, such information is provided in order to explain why the Department has concluded that sitting officials have not violated the law—as it did, for example, in Special Counsel Danforth’s 2000 report regarding the ATF’s confrontation with Branch Davidians at Waco and in a 2015 letter to Congress regarding the Internal Revenue Service’s treatment of tax exemption applications from nonprofit organizations.

Thus, to the extent Mueller has concluded that certain current federal officials, and perhaps others, have not acted illegally, it’s possible Barr will explain those decisions to Congress and the public—he might, that is, include exculpatory information about those individuals—in his Section 600.9(a)(3) notification.

But what if Barr’s comprehensive account of the Mueller investigation would also include inculpatory or otherwise unfavorable information about uncharged persons–including possibly the President?  As Assistant Attorney General Robert Raben explained in the so-called “Linder Letter” in 2000, longstanding DOJ policy is to try to preserve the confidentiality of information that “would implicate significant individual privacy interests,” including “unflattering personal information.”  This concern is reflected in § 9-27.760 of the DOJ “Justice Manual” (previously known as the U.S. Attorneys’ Manual), which cautions prosecutors to be sensitive to the privacy and reputational interests of uncharged third parties.

This explains why DOJ rarely provides Congress with internal “declination memoranda”—the formal explanations of why charges were not sought against an individual.  Instead, as the Linder Letter explained, DOJ ordinarily “tr[ies] to accommodate Congressional needs for information about declinations whenever possible by making appropriate Department officials available to brief Committee Members and staff” orally, thereby “afford[ing] us an opportunity to answer their questions, which can be helpful because it can include the context and process that accompanied the decision,” while “minimiz[ing] the intrusion on individual privacy.”

Even so, there is no categorical prohibition on including critical information about uncharged individuals in even a public explanation of a closed criminal investigation.  Nor has the salutary practice of avoiding such criticism been without exception—especially in cases where the public has a significant interest in understanding the conduct of public officials.  As DOJ Inspector General Michael Horowitz noted in his report on the Clinton investigation, “[i]t is not unprecedented for the Department to announce the completion of an investigation without a prosecution,” something that “happens frequently in high profile matters,” and “[i]n limited instances, the Department has included criticism of individuals not charged with a crime.”  (In addition to the incidents cited by the Inspector General, see, for example, Special Counsel Danforth’s report on the confrontation with Branch Davidians in Waco, which criticized certain FBI and DOJ officials for not timely disclosing to the Attorney General, Congress, the courts, counsel for the Davidians, and the public, evidence and information about the use of pyrotechnic tear gas rounds, a failure that “resulted from a combination of the inappropriate handling of evidence and the dereliction of duty.”)

What about former FBI Director Jim Comey?  Wasn’t he widely and properly excoriated for his public criticism of Hillary Clinton’s use of a private email server in the July 2016 news conference where he announced that “no reasonable prosecutor” would charge her?

Yes, he was.  As the DOJ Inspector General later explained, however, Comey’s mistakes did not include violating a categorical rule against commenting on uncharged conduct—because there is no such hard-and-fast rule.  Rather, Comey’s egregious errors in July 2016 included:  that he decided to offer his public statement unilaterally, without coordinating with his superiors at DOJ (“an unjustified usurpation of authority,” wrote the IG:  “it was extraordinary and insubordinate for Comey to conceal his intentions from his superiors, the Attorney General and Deputy Attorney General, for the admitted purpose of preventing them from telling him not to make the statement, and to instruct his subordinates in the FBI to do the same”); that he “inadequately and incompletely explain[ed] how the Department’s prosecutors applied the relevant statutory provisions and why they believed the evidence was insufficient to support a prosecution,” thereby sowing “confusion about the FBI’s assessment of [Clinton’s] culpability and the reasons for recommending that prosecution be declined” and leading “to greater public confusion and second guessing, not greater public clarity”; and, perhaps most notably, that the justifications Comey offered for accusing Clinton of being “extremely careless” in handling “highly classified information” did not “provide[] legitimate reasons to depart from [the] normal and appropriate Department practice” of refraining from criticizing uncharged subjects of investigations.

Presumably Attorney General Barr would not make similar errors of judgment if and when he includes information critical of the President or others in his memorandum to Congress and in any public account of the Mueller investigation.

  1. If the only reason Trump hasn’t been indicted is DOJ’s view that the Constitution requires the grand jury to wait until a President leaves office before charging him, shouldn’t DOJ make Congress and the public aware of that fact?

Attorney General Barr will almost certainly think not.

Some have suggested that if the only reason Mueller hasn’t asked a grand jury to indict Trump is not a lack of evidence but instead DOJ’s view that such an indictment would be unconstitutional during the President’s term in office, then any congressional and public account of the Russia investigation should include the fact that Mueller believes there’s probable cause to believe Trump has committed crimes.

As I explain in my Op-Ed, however, I seriously doubt Barr and Mueller will agree with this view, in light of the basis for DOJ’s conclusion that a presidential indictment must wait until after the President’s term.  The very reason the Office of Legal Counsel concluded (rightly or wrongly) that the Constitution forbids indictment of a sitting president is that such public charges would subject the president to the “stigma and opprobrium” of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law — a situation that (according to OLC) might undermine the president’s “respect and stature both here and abroad,” and thus impact his ability “to act as the nation’s leader in both the domestic and foreign spheres.”

The same reasoning presumably would apply to a single prosecutor’s conclusion, not yet even confirmed by a grand jury’s finding, of probable cause to believe the President has broken the law.  Indeed, such a public assessment of alleged criminal culpability might taint the grand jury’s future consideration of the question, which is all the more reason Barr is unlikely to disclose it.

Moreover, Barr is likely to conclude that Congress has no compelling need to know whether DOJ will ask a grand jury to indict Trump, or even to know whether Mueller believes that Trump’s conduct did or did not amount to any criminal offenses.  Of course Congress might have good reason, in its oversight and/or impeachment capacities, to take into account the details of Trump’s conduct, which the Barr notification ought to describe.  But even for the (hypothetical) purposes of impeachment, it shouldn’t matter much whether or not a prosecutor thinks Trump has violated criminal statutes:  The conduct either describes high crimes or misdemeanors or it doesn’t, and it either warrants removal from office or it doesn’t–but those questions do not depend upon whether Trump has also committed any offenses under Title 18 of the U.S. Code.

  1. What, exactly, is the purpose of a counterintelligence investigation? To whom does the Bureau ordinarily convey the results?

In my Op-Ed I suggest that the results of Mueller’s counterintelligence investigation are likely to be more significant than what we don’t already know about Mueller’s law enforcement (i.e., prosecution) decisions.

Rod Rosenstein expressly appointed Mueller to “conduct the investigation confirmed by then-FBI Director James S. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017.”  The FBI investigation that Comey “confirmed” in his March testimony, in turn–the investigation Mueller was appointed to conduct–was this:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

So what’s a counterintelligence investigation?  Section 1.7(g) of Executive Order 12,333, as amended, directs “the intelligence elements” of the FBI, under the AG’s supervision, to “[c]ollect (including through clandestine means), analyze, produce, and disseminate foreign intelligence and counterintelligence to support national and departmental missions,” and to “[c]onduct counterintelligence activities.”  Section 3.5(a) of that Executive Order in turn defines “counterintelligence” to include “information gathered . . . to identify, . . . disrupt, or protect against . . . intelligence activities . . . conducted for or on behalf of foreign powers, organizations, or persons, or their agents . . . .”

Of course, some intelligence activities of foreign powers violate U.S. domestic law; therefore an FBI counterintelligence investigation will often be partially devoted to uncovering criminal law offenses for purposes of possible prosecution.  (Hence Rosenstein’s testimony that “[a]s with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.”)  The principal purpose of such an investigation, however, is not punitive and retrospective but forward-looking and preventive (as the E.O. indicates–to “disrupt, or protect against,” the foreign threat).  (See David Kris here on the common overlap of criminal and counterintelligence functions in FBI investigations and its relevance to the Russia/Trump investigation.)

Naturally, then, the first and primary audiences for the results of such a counterintelligence investigation are those agencies within the “Intelligence Community” responsible for “disrupting” and “protecting against” the identified threat.  Accordingly, the FBI is authorized to disseminate the information it learns in a counterintelligence investigation to “other federal agencies if disclosure is compatible with the purpose for which the information was collected and it is related to their responsibilities.” FBI Domestic Investigations and Operations Guide (“DIOG”) § 14.3.1(B).  Indeed, the Bureau has a “responsibility” to provide such information “as consistently and fully as possible to agencies with relevant responsibilities to protect the United States and its people from . . . threats to the national security” (id. § 14.5; see also § VI-D of the AG’s Guidelines for Domestic FBI Operations).

Of course, the President superintends the components of the Intelligence Community, and it’s a presidential Executive Order that directs the FBI to conduct counterintelligence investigations in the first place.  In the ordinary course of a counterintelligence investigation, then, it would hardly be surprising if the Bureau decided to share the results of that investigation with the President himself, and/or with the President’s National Security Advisor, which it may do if the Attorney General approves such sharing based upon a determination “that such dissemination is needed for foreign intelligence purposes, for the purpose of protecting against international terrorism or other threats to the national security, or for the conduct of foreign affairs” (DIOG § 14.5.2.2; see also § VI-D-2-b of the AG’s Guidelines for Domestic FBI Operations).

  1. Can Trump himself be a subject of the counterintelligence investigation?

But what if the counterintelligence investigation provides reason to be concerned that the President himself might have some relationship to the foreign threat, in a way that could compromise his ability to perform his duties with respect to the threat.  Can the President himself then become someone who the Bureau investigates?

Yes.  (Again, David Kris is very good here on why that development was inevitable and proper in this case.)  As we now know, Acting Attorney General Rosenstein authorized the FBI to open a “file” on Trump himself as part of the Russia counterintelligence investigation just a few days before Rosenstein hired Mueller in May 2017.  The practical significance of opening such a “file” is not entirely clear.  After all, as Andrew McCabe’s new book confirms, the Bureau was already investigating Trump’s activities because he was an actor in his own presidential campaign, which was a focus of the counterintelligence investigation even before May 2017.  The opening of a distinct Trump “file” therefore probably meant only (or principally) that the Bureau could begin to conduct distinct “Sensitive Investigatory Matter” activities “involving the activities of a domestic public official or domestic political candidate,” i.e., of Trump, something that requires heightened procedural checks.  See DIOG Parts 9.10 and 10.

  1. Does the FBI have a legal duty to keep the congressional intelligence committees “fully and currently informed” of the fruits of its counterintelligence investigations?

Yes.

Perhaps the most important part of my Op-Ed is my claim that the DOJ/FBI briefing of the congressional intelligence committees about the Russia counterintelligence investigation will probably be more significant that either Mueller’s report to Barr or even Barr’s report to the Judiciary Committees.  This raises the obvious question:  Does the FBI (and/or Main Justice) have a duty to keep the intelligence committees—the House Permanent Select Committee on Intelligence (HPSCI) and the Senate Select Committee on Intelligence (SSCI)—fully and currently informed of the results of a counterintelligence investigation?

My understanding is that it does.  Federal law requires the head of an executive agency or component to “keep the congressional intelligence committees fully and currently informed” of all “intelligence activities” (50 USC 3092). Executive Order 12,333, in turn, makes clear that FBI counterintelligence investigations are “intelligence activities.”  Section 3.5(g) defines “intelligence activities” to mean “all activities that elements of the Intelligence Community are authorized to conduct pursuant to this order.”  Section 3.5(h)(9) specifies that “[t]he intelligence elements of the Federal Bureau of Investigation” are part of the Intelligence Community.  And, as noted above, section 1.7(g) directs “the intelligence elements” of the FBI, under the AG’s supervision, to “[c]ollect (including through clandestine means), analyze, produce, and disseminate . . . counterintelligence to support national and departmental missions” and to “conduct counterintelligence activities” within the U.S.  See also DIOG § 14.5.3 (“FBI employees must work through supervisors and the FBI [Office of Congressional Affairs to keep the Congressional intelligence committees fully and currently informed of the FBI’s intelligence activities as required by the National Security Act of 1947, as amended.”).

In connection with the confirmation hearing of John Demers to be the current Assistant Attorney General for the National Security Division, Demers confirmed this understanding.  He was asked whether he agreed “that the Department and the FBI should fully notify and brief the congressional intelligence committees on potential counterterrorism and counterintelligence threats to the United States, as well as FBI intelligence-related activities to thwart such threats.”  Demers responded:  “Yes. I agree that the Department, including the FBI, should fully notify and brief the congressional intelligence committees on potential counterterrorism and counterintelligence threats to the United States, as well as the Department’s intelligence-related activities to thwart such threats.”  This was consistent with similar answers offered by Demers’ predecessors, Lisa Monaco and John Carlin.

An example:  Andrew McCabe reports in his new book that when the FBI decided to open an administrative “file” on Trump in May 2017, as part of the counterintelligence investigation that Mueller began to supervise a few days later, they briefed the so-called “Gang of Eight” on that development.  Presumably the Bureau did so pursuant to its obligation to keep HPSCI and SSCI “fully and currently informed.”

  1. What does it take to satisfy the requirement of keeping SSCI and HPSCI “fully and currently” informed?

This is a surprisingly difficult question to answer.  The practical meaning of the “fully and currently informed” standard–how it cashes out in actual operation–is something the intelligence agencies and the congressional committees have worked out among themselves, behind the scenes, over many years.

Several people who’ve been privy to this practice stress that the form of the notification is very case- and fact-specific.  It’s often only an oral briefing, but occasionally there are written submissions, as well.  Notification is also sometimes limited, at least in the first instance, to the so-called “Gang of Eight”—the Speaker of the House and House Minority Leader, the Majority and Minority Leaders of the Senate, and the chairs and ranking minority members of both the SSCI and HPSCI.

As I write in the Op-Ed, however, whatever the historical practice has been, it’s virtually certain that in this case DOJ (i.e., Barr, Mueller, and/or the FBI) will at a minimum inform the Gang of Eight—and probably the entire SSCI and HPSCI, as the statutory language appears to require—about whatever evidence Muller has adduced concerning whether or not President Trump is compromised with respect to Russia and, if so, in what way and to what effect.  Mueller’s general conclusions on those questions, and at least an outline of the evidence supporting them, simply aren’t the sorts of things that realistically could or should be kept secret from HPSCI and SSCI.

By contrast, the counterintelligence briefing(s) to Congress probably will not include any assessments from the “criminal” side of the FBI investigation about whether Trump and others have committed any offenses that might be charged after he leaves office, even if those briefings might recount much of the evidence that would support any such charges.

  1. Can DOJ and/or the Intelligence Committees disclose the results of counterintelligence investigations to the public? Is there any precedent for that? 

Yes, at least to some extent.

There appears to be at least some precedent for the results of counterintelligence investigations to be made public, at least in part, where the public interest is acute and the evidence can be described without revealing sources and methods that must remain secret.  Ryan Goodman and Andy Wright recount one such example—concerning the counterintelligence investigation of Chinese intelligence efforts to curry favor with cash infusions to the Democratic party in the 1996 election cycle.

In the case of the Russia investigation, I have no idea—nor does anyone else outside the FBI, DOJ, and the intelligence committees—how much of the counterintelligence information Mueller is collecting may safely be shared with a public audience.  Like Ben Wittes, however, I presume Mueller will do whatever he can to present such information in a form that permits the greatest possible dissemination.

  1. Will grand jury confidentiality rules and/or executive privilege be a serious obstacle when it comes to the Barr Notification or the FBI’s counterintelligence briefings to the Intelligence Committees?

I doubt it.

The grand jury secrecy provisions of Rule 6(e) of the Federal Rules of Criminal Procedure might prohibit DOJ from including certain documents, and accounts of grand jury proceedings, in any report to Congress.  But cf. In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1227-1230 (D.D.C.) (Rule 6(e) did not prevent granting the Watergate grand jury’s request that its report on the matters it investigated be submitted to the House Judiciary Committee), mandamus denied sub nom. Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974); In re Grand Jury Proceedings of Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75 (S.D. Fla.) (House Judiciary Committee was entitled to receive the record of grand jury proceedings in furtherance of its impeachment investigation of Judge Alcee Hastings), aff’d, 833 F.2d 1438 (11th Cir. 1987).

Even assuming Rule 6(e) could theoretically apply here, however, I doubt it’ll preclude DOJ from disclosing to Congress much, if any, of the substance of the information that would otherwise be included in Barr’s notification or a DOJ/FBI counterintelligence briefing, largely for the reasons Ryan Goodman and Andy Wright discussed in Part 1 of this post.

Similarly when it comes to executive privilege:  For many of the reasons discussed by Jessica Marsden and Andy Wright, I’m skeptical Barr would conclude that much, if any, of the information that would be included in his notification or in DOJ/FBI counterintelligence briefings would be subject to a valid claim of privilege.

The one possible exception is information relating to open law enforcement investigations.  The Executive branch has long held the view that the constitutional doctrine of executive privilege immunizes such information against even congressional subpoenas.  As far as I know, no court has opined on whether that constitutional view is correct, but I’m not sure the legal question matters much here–not, anyway, unless and until a congressional committee subpoenas DOJ to disclose such information–because, privileged or not, Barr will likely try to exclude any such information (and perhaps also some information that might taint ongoing prosecutions) in DOJ reports to Congress, relying upon the longstanding DOJ view that such disclosure can be very damaging.  (See the “Open Matters” section of the Linder Letter.)

At that point, Congress might push back and ask for even some “open files” information.  That would probably result in some sort of mutually acceptable accommodation, with an eye to preserving the integrity of ongoing prosecutions.  But if push ever comes to shove–if the Executive branch continues to refuse to provide open-file materials to the point where a committee issues a subpoena and tries to enforce it in court–Congress might emerge victorious, for two reasons:  First, it’s uncertain whether the courts will agree that there’s any constitutional privilege to resist subpoenas of open-file records.  And second, even if there were such a privilege, DOJ might have waived it as to many of the records here, at least if the reports are accurate that DOJ has been generously sharing open file records with respect to the Russia investigation in response to oversight requests.

  1. See as how OLC concluded that the Constitution forbids indictment of a sitting president because of the “stigma and opprobrium” of being branded an accused criminal without a timely opportunity to respond to his accusers in a court of law, wouldn’t that same concern be a reason for DOJ not to reveal damning evidence about Trump in Barr’s notification to the Judiciary Committees or in DOJ’s counterintelligence briefings to the Intelligence Committees?

No.

Even assuming OLC’s analysis is correct (something Barr will certainly do), its 2000 opinion importantly distinguished an indictment from an impeachment by the House of Representatives (something that obviously can result in even greater stigma and opprobrium), and the OLC opinion also discussed (see fn.14) the possibility of a grand jury naming a sitting president as an unindicted co-conspirator, without so much as suggesting that that is unconstitutional.  (Indeed, that’s what the Watergate grand jury did in February 1974:  it made a “finding” that there was probable cause to believe President Nixon conspired with other defendants to commit crimes, and authorized Leon Jaworski to publicly identify the President as an unindicted co-conspirator in a bill of particulars issued in preparation for the trial of one or more of the other alleged conspirators, thereby paving the way for introduction of the President’s statements in the prosecution’s case-in-chief.  And as Jaworski wrote in a brief to the Supreme Court on behalf of the United States, “[w]hatever may be the case with respect to indictment, there are no substantial arguments for creating an immunity for the President even from being identified as a co-conspirator when a grand jury finds it necessary and appropriate to do so in connection with an independent criminal prosecution of others.”)

The OLC opinion suggested at least two grounds for distinguishing those situations from an indictment.  First, an indictment has a unique “public meaning”—one that’s likely to have the most acute impact on the President’s ability to serve effectively—because it’s an “allegation of wrongdoing reflecting the official judgment of a grand jury acting under the general supervision of the District Court.”

Second, and probably of greater importance, OLC’s constitutional conclusion crucially depended upon OLC’s assessment that there’d be no significant need for an immediate indictment, especially in a case where the grand jury could act after the President leaves office.

The 2000 opinion applied what OLC has elsewhere called the “general separation of powers” principle, which asks not only whether and to what extent the action in question would “prevent[] the Executive Branch from accomplishing its constitutionally assigned functions,” but also “whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress.”  See Nixon v. Administrator of General Services, 433 U.S. at 443, cited with approval in Clinton v. Jones, 520 U.S. at 701, and in the OLC opinion at 245 n.17.  OLC concluded (see Part II-B-3, pp. 255-257) that there isn’t an “overriding need” to indict a sitting president.  By contrast, there is, of course, an extremely compelling need for Congress and the public to be able to learn what Trump did or did not do in connection with Russia’s electoral interference and the Russia investigation and, most importantly of all, whether he’s in any way compromised with respect to his ability to deal with matters involving Russia in his capacity as a sitting President.

OLC’s governing view of the constitutionality of a grand jury indictment of a sitting president therefore doesn’t stand in the way of DOJ providing a comprehensive account to Congress and the public of the facts uncovered in the Russia investigation. 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).