Barr the Redactor?

[April 7 UPDATES noted.]

In his March 29 letter, Attorney General William Barr informed the Chairs of the congressional Judiciary Committees that the report Special Counsel Robert Mueller delivered to Barr last month “is nearly 400 pages long (exclusive of tables and appendices) and sets forth the Special Counsel’s findings, his analysis, and the reasons for his conclusions.”  Barr also promised that “[e]veryone will soon be able to read [the Mueller report] on their own,“ because he will provide it to Congress by mid-April, if not earlier — in other words, probably by the end of this coming week.

In each of his recent letters regarding the Mueller report Barr has made reference to a DOJ process of making redactions before the report can be shared with Congress. (In the March 29 letter, for instance, Barr stressed that “we” are “preparing the report for release, making the redactions that are required.”)  This has led many observers to worry that the version of the report Barr delivers to Congress in the next few days will be woefully incomplete, and won’t adequately convey Mueller’s findings and analysis.

Perhaps.  But there are at least three reasons to believe — or at least to hope — that the version of the report Barr gives Congress will not include many material redactions, and that those Barr does make will not significantly affect Congress’s and the public’s ability to fully understand and assess the results of Mueller’s investigation.

First, Barr has repeatedly committed himself to the greatest possible degree of transparency — which is as it should be, because the whole point of the AG notification requirement in the DOJ regulations 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.”

In his initial letter notifying Congress of Special Counsel Mueller’s report, Barr stated that he is “committed to as much transparency as possible” with respect to that report.  This was in keeping 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, including the [Special Counsel] regulations, and the Department’s longstanding practices and policies.”  Barr repeated this promise in his March 24 letter to the Judiciary Committees:  Because of “the public interest in this matter,” Barr wrote,” “my goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.”  And in his opening statement to the Senate Judiciary Committee in January, Barr offered the unequivocal statement that “I can assure you that, where judgments are to be made by me [about how to release the Mueller report], I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.”  Barr has thus established a very demanding standard for his decisions here, one that presumably he’d be loath to disregard.

Second, in his March 29 letter Barr disclosed that Mueller himself “is assisting us in this process” of preparing the report for disclosure.  I think it’s fair to assume that Mueller wrote the report with an eye to allowing the greatest possible transparency to Congress and the public.  If that’s right, then Mueller presumably is urging DOJ to redact as little as possible, and internally arguing, where appropriate, that major redactions are not necessary.  Barr is unlikely to reject Mueller’s recommendations and legal views absent very compelling counterarguments.

Third, when it comes to the “merits,” neither the law nor DOJ “policies and practices” ought to require extensive redactions of the Mueller report, particularly not with respect to those aspects of the report discussing President Trump and other government officials.  To be sure, it’s possible that some citations to particular evidence might have to be excluded — at least in any version of the report that is released to the public — but it’s not obvious that such citations would preclude Barr from retaining all or virtually all of Mueller’s conclusions and analysis, at least in the version of the report that he submits to Congress.

In the remainder of this post, I’ll offer some tentative thoughts on the four categories of materials Barr has identified as possibly warranting redactions. The first two of those categories — grand jury matters and classified information — arguably implicate certain legal constraints, whereas the latter two — “[m]aterial that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices” and “[i]nformation that would unduly infringe on the personal privacy and reputational interests of peripheral third parties” — arguably implicate DOJ policies and practices.

Legal Constraints

The law shouldn’t be much of a barrier to robust disclosure to Congress, with two possible, but probably fairly minor, exceptions.

1.  “Matters occurring before the grand jury”

The Justice Department has announced that each of the pages of Mueller’s report contains the warning “May Contain Material Protected Under Fed. R. Crim. P.6(e),” and Barr informed Congress that Mueller “issued more than 2,800 subpoenas,” presumably most if not all of which were formally issued by a grand jury.  Therefore it’s not surprising that in his letters to Congress, Barr has repeatedly referred to grand jury information as the primary category of information that he’s busy redacting from the Mueller report.

Rule 6(e)(2)(B) of the Federal Rules of Criminal Procedure prohibits a government attorney, such as Barr or Mueller, from “disclos[ing]” “a matter occurring before the grand jury,” unless the Rules of Criminal Procedure provide otherwise.

Therefore Barr — with Mueller’s assistance — must now be asking two questions: (i) which portions of the Mueller report, if any, would “disclose a matter occurring before the grand jury”? and (ii) whether there are any exceptions that might nevertheless permit such disclosure, at least to members of certain congressional committees.

a.  Coverage of “matters occurring before the grand jury” under Rule 6(e)

How much of the Mueller report might “disclose a matter occurring before the grand jury”?  Probably much less than many people are assuming.

For starters, as Ryan Goodman and Andy Wright wrote here back in February, it’s entirely possible that significant parts of Mueller’s investigation — including perhaps the part focused on President Trump’s potential “obstruction of justice” and other actions undertaken while he’s been in office — occurred outside the aegis of the grand jury, in which case Rule 6(e) would not affect the portions of the report discussing those aspects of the investigation.

OK, but what about evidence that was presented to the grand jury, or that Mueller obtained pursuant to a grand jury subpoena?

Rule 6 does not itself define the phrase “a matter occurring before the grand jury,” nor explain what it means to “disclose” such a matter.  Generally speaking, courts have read Rule 6(e) to prohibit any discussion or revelation by a covered attorney that would reveal to the audience what actually took place in the grand jury room.  Obviously, then, an attorney generally may not disseminate transcripts of grand jury proceedings; documents marked as “summaries” of such proceedings; descriptions of the grand jurors’ deliberations or questions; or information that expressly identifies the grand jurors or that specifies persons as having been grand jury witnesses or “targets.”

However, the mere fact that information has been presented to the grand jury, or that a document has been considered or subpoenaed by a grand jury, does not in and of itself trigger Rule 6(e)’s confidentiality requirement. As the U.S. Court of Appeals for the D.C. Circuit has repeatedly emphasized, “Rule 6(e) does not ‘draw ‘a veil of secrecy … over all matters occurring in the world that happen to be investigated by a grand jury.’”  Labow v. DOJ, 831 F.3d 523, 529 (D.C. Cir. 2016) (quoting Senate of Puerto Rico v. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987), in turn quoting SEC v. Dresser Indus. Inc., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)); see also Bartko v. DOJ, 898 F.3d 51, 73 (D.C. Cir. 2018).

The “touchstone” for triggering Rule 6(e)(2)(B) is, instead, “whether the information sought would reveal something about the grand jury’s identity, investigation, or deliberation.”  Labow, 831 F.3d at 529; accord Bartko, 898 F.3d at 73.

A government attorney therefore may, for example, disclose a document subpoenaed by a grand jury, or describe or cite to such a document, as long as he or she does so in a manner that doesn’t reveal that a grand jury subpoenaed or considered that document.

It’s quite possible that most of the evidence discussed in the Mueller report can be disclosed — or can at a minimum be cited as support for Mueller’s findings — without revealing whether a grand jury subpoenaed or considered it.  And where that’s the case, Rule 6(e) does not require a redaction.

It’s important, in this regard, that Barr be careful not to redact information from the Mueller report he submits to Congress in the coming days on the mistaken ground that it was merely considered (or subpoenaed) by the grand jury, because if he does so the redactions themselves could reveal what otherwise might not have been apparent — namely, that the grand jury considered the evidence — if and when DOJ or a court later concludes that the material was not covered by Rule 6(e) and the information is “belatedly released” (Labow, 831 F.3d at 530).  Such a mistake in the first instance might not bar later disclosure as a matter of law.  See id. (“Of course, if the documents are now belatedly released, it might be apparent that they had been subpoenaed by a grand jury given that the potential connection with a grand jury is now known. That fact, however, should not bar disclosure.”)  Even so, it would result in an unnecessary breach of grand jury confidentiality — a compelling reason for Barr not to err on the side of assuming Rule 6(e)’s application in cases where it does not clearly apply.

b. The Rule 6(e)(3)(D) exception

Even if some of the information in the Mueller report is covered by Rule 6(e), and thus Barr can’t disclose it to the public, it’s possible that Barr can nevertheless disclose such information to at least the members of certain congressional committees, pursuant to one of the exceptions in Rule 6(e) itself.

The second sentence of Rule 6(e)(3)(D) — an exception Congress added in 2004 — provides that “[a]n attorney for the government may … disclose any grand-jury matter involving, within the United States or elsewhere, a threat of attack or other grave hostile acts of a foreign power or its agent, a threat of domestic or international sabotage or terrorism, or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent, to any appropriate federal, state, state subdivision, Indian tribal, or foreign government official, for the purpose of preventing or responding to such threat or activities.”

As far as I know there are no judicial decisions discussing who counts as an “appropriate” federal official under this exception.  Based upon its plain words, however, the exception would appear to comfortably cover the members of the congressional intelligence committees, at a minimum (as well as the Senate and House leadership who are part of the so-called “Gang of Eight”), whose functions certainly include evaluating how the U.S. should “prevent[] or respond[] to” Russia’s “grave hostile threats.”  It might also cover, e.g., the members of the judiciary and foreign affairs committees, assuming that they, too, are working to prevent or respond to the Russian threats. (If any Just Security readers know more about how the legislative history or other sources might bear on the question of how to interpret the second sentence of Rule 6(e)(3)(D), please let me know, thanks.)

If this reading is correct, then Barr can include “matter[s] occurring before the grand jury” in the version of the Mueller report he conveys to some congressional committees, even if (perhaps) not to the rest of Congress.  If he does so, however, the members of those committees would not be free to disclose the “matter[s] occurring before the grand jury” to the public, because Rule 6 expressly provides that “[a]ny official who receives information under Rule 6(e)(3)(D) may use the information only as necessary in the conduct of that person’s official duties subject to any limitations on the unauthorized disclosure of such information.”

The fact that certain grand jury information might be shared with Congress but not made public is not as problematic, or as unprecedented, as it might appear at first.  After all, the so-called Jaworski “Road Map” — a document created by the Watergate grand jury and that therefore consisted entirely of information otherwise covered by Rule 6(e) — was provided to the House Judiciary Committee and was not thereafter shared with the public for almost 45 years, until Chief Judge Howell authorized its public release late last year.  Needless to say, the Committee was able to put that road map to very effective use with respect to a sitting President even though it could not, and did not, share the document with the general public.

c.  A possible “judicial authorization” exception?

Let’s assume that Barr redacts from the Mueller report some information that is (genuinely) covered by Rule 6(e), or shares such information only with certain committees (such as the intelligence committees) pursuant to the exception in the second sentence of Rule 6(e)(3)(D).  In that case would there be any way for Barr also to share the information with other members of Congress, too?  After all, Leon Jaworski shared the grand jury “road map” with the House Judiciary Committee, notwithstanding Rule 6(e), long before Congress enacted the Rule 6(e)(3)(D) exception.

Jaworksi was able to send the grand jury’s road map to the House Judiciary Committee only because Judge John Sirica authorized him to do so, in response to a request for such disclosure from Committee Chairman Peter Rodino on behalf of the Committee.

Citing the Sirica/Rodino precedent, several commentators have recommended that if Barr redacts from the Mueller report certain information that’s properly covered by Rule 6(e), the current House Judiciary Committee should make a similar request to the Chief Judge of the U.S. District Court for the District of Columbia, Beryl Howell, asking her to authorize Barr to disclose grand jury information to Congress.

Would Chief Judge Howell have the power to authorize such disclosure?  There are two possible arguments that she would, but it’s not clear that either of them would be of much use in this case, at least not in the short run.

     — “Inherent authority”

First, several courts of appeals have held that judges retain an “inherent authority” that they enjoyed before the enactment of Rule 6(e) to authorize government attorneys to disclose grand jury information to others in at least some compelling circumstances not expressly provided for in Rule 6(e).  See Carlson v. United States, 837 F.3d 753, 761-67 (7th Cir. 2016), & cases cited therein. Indeed, as Judge Srinivasan explained on Friday, Chief Judge Sirica himself authorized disclosure of the Watergate “road map” to the Judiciary Committee based upon just such an “inherent authority” theory.

The Department of Justice’s current view, however, is that courts have no such inherent authority to stray from the specific exemptions for judicial authorizations listed in Rule 6(e)(3)(E), and yesterday a divided panel of the U.S. Court of Appeals for the D.C. Circuit agreed with the government in its long-awaited McKeever v. Barr decision, thereby creating a circuit-split that might wind its way up to the Supreme Court.

I tend to think that the predominant view in the courts of appeals — that judges do retain such an inherent authority — is correct; and I certainly agree with Judge Srinivasan that there was governing D.C. Circuit precedent to that same effect (Haldeman v. Sirica, 501 F.2d 714 (1974), involving the Sirica/Rodino/Jaworski case itself) that ought to have controlled the court’s decision in McKeever.

Be that as it may, however, now that the McKeever panel has ruled otherwise, Chief Judge Howell is not about to authorize Barr to disclose grand jury information to the congressional judiciary committees (let alone the public) on an “inherent authority” theory unless and until McKeever is overturned — and Barr himself surely won’t make a disclosure on the basis of such a theory unless and until the Supreme Court approves it in McKeever or another case, something that almost certainly won’t happen until the summer of 2020 at the very earliest (if it happens at all).

     — “preliminarily to” impeachment proceedings

Even apart from “inherent authority,” however, Rule 6(e) itself affords a court the power to authorize disclosure of information revealing grand-jury matters — “subject to any other conditions that it directs” — “preliminarily to or in connection with a judicial proceeding” (Rule 6(e)(3)(E)(i)).  This is potentially significant because the McKeever majority yesterday implicitly approved of Judge’s MacKinnon’s view, in his concurring opinion in Haldeman, that the House’s consideration of articles of impeachment are a “judicial proceeding” for purposes of this exception.  Accord In re Grand Jury Proceedings of Grand Jury No. 81-1, 669 F. Supp. 1072, 1074-75 (S.D. Fla.) (holding that 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)Indeed, the McKeever court held (see page 10 n.3) that that’s the proper reading of the court of appeals’ decision in Haldeman, which affirmed Chief Judge Sirica’s authorization to share the Watergate road map with the Judiciary Committee.  (Judge Srinivasan, dissenting, is right that that’s not the better understanding of the court’s holding in Haldeman, but for present purposes it doesn’t matter who’s got the better view on that question.)

So does the Rule 6(e)(3)(E)(i) exception, for a disclosure “preliminarily to or in connection with a judicial proceeding,” apply here?  In particular, could Chief Judge Howell conclude that disclosure of grand jury information to the House Judiciary Committee would be “preliminar[y] to” House impeachment proceedings?  You might think not because — unlike in the Sirica/Rodino case — the House has not voted to authorize the Judiciary Committee “to investigate . . . whether sufficient grounds exist for the House … to exercise its constitutional power to impeach” President Trump.

The absence of such a formally authorized impeachment investigation, however, might not necessarily preclude application of the Rule 6(e)(3)(E)(i) exception — at least not if Judges Sentelle, Butzner and Fay, sitting as a “Special Division” under the Ethics in Government Act of 1978, were correct when they invoked the “preliminar[y] to a judicial proceeding” exception as grounds for authorizing Ken Starr to share his report, which was chock-full of covered grand jury information, with the whole House of Representatives, even though there wasn’t then an ongoing investigation concerning whether the House could or should impeach President Clinton.  (In that case, of course, the House promptly made public all of that grand jury information, in what might have been the most extensive breach of grand jury secrecy in our history.)  [UPDATE:  Quite honestly, it’s not clear to me that Judges Sentelle, et al. were right to authorize Starr to disclose his report.  The Supreme Court had already held, in United States v. Baggot, 463 U.S. 476, 480 (1983), that the proceeding in question must be “pending or anticipated” and that it’s “not enough to show that some [proceeding] may emerge from the matter in which the material is to be used, or even that [a proceeding] is factually likely to emerge” (emphasis added).*]

If the House Judiciary Committee were to ask Chief Judge Howell to authorize Barr to disclose grand jury information in the Mueller report to the Committee on the authority of the 1998 Sentelle/Butzner/Fay ruling in In re:  Madison Guaranty Savings & Loan Ass’n, and if Chief Judge Howell were to grant that request, but cf. Baggot, discussed above, it would then be up to Attorney General Barr whether to share the information with the Judiciary Committee — presumably under conditions imposed by Chief Judge Howell that would forbid or limit public dissemination.

I don’t have any clue what Barr would do in such a case, but we might never have occasion to find out:  If Barr concludes, as he probably should (see Subpart a, above), that very little of the Mueller report is covered by Rule 6(e) in the first instance, or if he provides covered grand jury information to the Judiciary Committees pursuant to the exception in the second sentence of Rule 6(e)(3)(D) (see subpart (b), above), then it’s unlikely the Committee would request Chief Judge Howell to authorize Barr to share the information, especially if that committee — in contrast to Chairman Rodino in 1974 and Ken Starr in 1998 — is reluctant to represent to Chief Judge Howell that impeachment proceedings are not merely possible but “anticipated,” which is what would appear to be necessary under Baggot.  [UPDATE:  As it happens, on Monday, April 1, the Reporters’ Committee for Freedom of the Press filed an application to Chief Judge Howell asking her to authorize disclosure of the grand jury information in the Mueller report and relying in part upon the Rule 6(e)(3)(E)(i) exception for a disclosure “preliminarily to or in connection with a judicial proceeding” (see pp. 18-20).  Keep an eye on how the government responds.  The parties will propose a briefing schedule this coming Friday, April 12.]

2. Classified information

The only other legal constraint that might require Barr to make any redactions is if Mueller’s report includes any information that’s classified because it risks revealing secret sources or methods of intelligence-gathering.  If so, Barr can and should provide such information to members of Congress who have the requisite security clearances, but he could not — not unless the information is declassified, anyway — make such information publicly available.  As I wrote earlier, however, it’s likely Mueller has tried to describe his findings in a form that permits the greatest possible public dissemination consistent with national security imperatives — in other words, that he’s tried to keep the classified information to a minimum in this report.  (By contrast, the expected forthcoming briefings of the House and Senate intelligence committees on the counterintelligence aspects of the Mueller investigation might include much more classified information.  As I explained in my earlier post, however, because the public has 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 probably safe to assume Mueller and the FBI will try to convey such information to the committees in a form that permits the greatest possible dissemination consistent with national security imperatives, “[a]t 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.”)

[UPDATE:  Classification restrictions are, of course, not written in stone or in statute, but are instead subject to executive modification.  A friend reminds me, in particular, that Section 3.1(d) of Executive Order 13526 provides that even where information “continues to meet the classification requirements,” if the “need to protect such information” is “outweighed by the public interest in disclosure of the information,” the information “should be declassified.”  Presumably that standard would be met here with respect to at least some of the classified information Mueller has used in his investigation, in light of the extraordinary public interest in understanding the full scope of the Russian threat and whether any sitting government officials are implicated in that threat or compromised in their ability to countermand it.  The “declassifying” officer with respect to such information — the Director of National Intelligence or the head of the classifying agency — therefore should declassify the information that satisfies the “public interest” standard.  Whether any Trump Administration declassification officials will do so is, of course, another question entirely.]

DOJ Policy Constraints

So much for the law.  What about the Justice Department “policies and practices” that Barr has identified?

3.  Information that could affect ongoing cases

In his March 29 letter, Barr referred to potential redactions of “material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices.”  This appears to be a reference to what Assistant Attorney General Robert Raben referred to, in the so-called “Linder Letter” in 2000, as “[t]he Department’s longstanding policy . . . to decline to provide Congressional committees with access to open law enforcement files.”

As the Linder Letter explains, this DOJ “open files” policy is based upon four considerations.  Primary among them is a concern that Congress will try to influence prosecutorial decision-making, particularly where Congress purports to need the information as part of its own oversight of DOJ’s law enforcement practices.  As the Linder Letter explains (quoting from a 1986 OLC opinion, disclosing open-file information with Congress might

place the Congress in a position to exert pressure or attempt to influence the prosecution of criminal cases. Congress would become, “in a sense, a partner in the investigation,” and could thereby attempt to second-guess tactical and strategic decisions, question witness interview schedules, debate conflicting internal recommendations, and generally attempt to influence the outcome of the criminal investigation. Such a practice would significantly damage law enforcement efforts and shake public and judicial confidence in the criminal justice system. Decisions about the course of an investigation must be made without reference to political considerations.

This principal justification for the open-files nondisclosure policy shouldn’t be much of a concern in this case, and I’d be surprised if Barr invokes it.  Congress isn’t investigating the propriety of the Mueller investigation itself, or the cases Mueller has handed off to other DOJ components, and there’s little or no chance that congressional committees would use Mueller’s findings to try to pressure DOJ to change its investigatory and prosecutorial decisions.

Second, disclosing open-files information could provide a “road map” of DOJ’s thinking to the targets of the investigation, including those who have been or will be charged.  As Attorney General Robert Jackson put the point in 1941, in response to a congressional request for all FBI memos and correspondence relating to investigations of labor disputes:  “Disclosure of the reports could not do otherwise than seriously prejudice law enforcement.  Counsel for a defendant or prospective defendant, could have no greater help than to know how much or how little information the Government has, and what witnesses or sources of information it can rely upon.  This is exactly what these reports are intended to contain.”  Position of the Exec. Dep’t Regarding Investigative Reports, 40 U.S. Op. Atty. Gen. 45, 46 (1941).

It’s conceivable that Barr (and Mueller) might be concerned about this possibility with respect to some of the information –which also explains, for instance, many of the instances in which Mueller has redacted portions of his court filings when they’ve been released to the public.  Of course, this wouldn’t be a problem at all in the context of Barr’s notification if there were some assurance that Congress would, during the pendency of the prosecutions, secure the secrecy of any information Barr identifies as raising such a “road map transparency” concern. See, for example, the successful, cooperative sharing of open files in the context of the 1979 hearings involving white-collar crime in the oil industry, described at pages 23-24 of this CRS report:  A DOJ official praised the congressional chairmen (Conyers and Dingell), “and all other members of the committee and staff, for the sensitivity which they have shown during the course of these hearings to the fact that we have ongoing criminal investigations and proceedings, and the appropriate handling of the question in order not to interfere with those investigations and criminal trials.”

More often, however, DOJ has had doubts about whether Congress as a whole can be entrusted to keep such information private; after all, even if the vast majority of members and staff act appropriately, it only takes one leaker to destroy confidentiality.  (See generally, e.g., Devin Nunes.)  Keep an eye out, therefore, for whether Barr cites “road map confidentiality” concerns as a reason to withhold some information from Congress.

Third — and this consideration applies to open and closed files alike — the Linder Letter refers to “a broad confidentiality interest in materials that reflect [DOJ’s] internal deliberative process.”  As the Letter explains:

[W]e have sought to ensure that all law enforcement and litigation decisions are products of open, frank and independent assessments of the pertinent law and facts –uninhibited by political and improper influences that may be present outside the Department.  We have long been concerned about the chilling effect that would ripple throughout government if prosecutors, policy advisors at all levels and line attorneys believed that their honest opinion–be it “good” or “bad”– may be the topic of debate in Congressional hearings or floor debates. These include assessments of evidence and law, candid advice on strengths and weaknesses of legal arguments, and recommendations to take or not to take legal action against individuals and corporate entities.

The Department must seek to protect this give-and-take process so that the participants in the process can vigorously debate issues before them and remain able to provide decisionmakers with complete and honest counsel regarding the conduct of the Department’s business.  If each participant’s contribution can be dissected by Congress in a public forum, then the free and candid flow of ideas and recommendations would certainly be jeopardized.  The Supreme Court has recognized the legitimacy of this “chilling effect” concern: “Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decisionmaking process.”  United States v. Nixon, 418 U.S. 683, 705 (1974).

Although this consideration is undoubtedly important, Barr is unlikely to raise it as a barrier to disclosing Mueller’s own findings, because Mueller well understood the multiple purposes of his investigation — including the importance of informing Congress and the public about the full scope of the Russian efforts to affect our electoral system, and whether President Trump is at all compromised in addressing the threat — and presumably he wrote his report(s) on the assumption that they could see the light of day.  I doubt anyone thinks that Robert Mueller has in any way “temper[ed]” his “candor” in his reports to Barr because of fear of how the public might react to his decision-making, or that disclosing Mueller’s findings to Congress would unduly chill the candor of future Special Counsels.

The concern about chilling internal functions and deliberations is more likely to become salient only if and when congressional committees ask for any underling deliberative materials, such as internal memos among attorneys and agents within Mueller’s shop, or FBI “302 forms” in which agents summarized witness interviews.  Charlie Savage reports that “Democrats are also pushing for information and material Mr. Mueller gathered but did not put in the report.  Such files could include documents and records of interviews with witnesses, as well as any internal memos the Mueller team wrote analyzing negative information about people whom it ultimately decided against indicting.”  If that happens, Barr might well push back, citing the traditional concern about chilling internal deliberative processes associated with prosecutorial decision-making.

Finally, the Linder Letter cited the concern that the reputations of uncharged individuals “could be severely damaged by the public release of information about them, even though the case might ultimately not warrant prosecution or other legal action.”  I discuss this consideration separately in Part 4, below.

* * * *

In assessing any possible claims based upon DOJ’s “protection of open law enforcement files” policy, it’s important to note that the DOJ practice has not been inviolate:  On fairly rare occasions, the Department has voluntarily shared open-file information with congressional committees.  In addition to the notorious case involving Devin Nunes last year, and the case of Leon Jaworksi’s Watergate “road map,” see the other examples discussed in this Congressional Research Service paper, including, especially, the case of the 1979 congressional investigation of White Collar Crime in the Oil Industry (pp. 23-24), and the case of the disclosure of the Freeh and La Bella memos on campaign finance investigations (pp. 36-37).

* * * *

If Barr does withhold any of Mueller’s findings on grounds that they’re part of “open law enforcement” files, and Congress then objects, what happens then?

That would trigger inter-branch negotiations in an effort to reach a mutually acceptable accommodation, with an eye to both providing Congress with the information it needs and also preserving the integrity of ongoing prosecutions. (Such a compromise might include, for instance, sharing certain information only in secured facilities.)

What if such “accommodation” negotiations come to an impasse and committees then start issuing subpoenas for the information?

At that point Barr would probably have little choice but to turn over the information to Congress . . . unless President Trump invokes a claim of “executive privilege” with respect to “open law enforcement files.”  It’d be fairly galling for Trump to do so — and perhaps politically fraught — after he not only pushed DOJ to turn over hundreds or thousands of pages from very sensitive law enforcement and intelligence files to Rep. Devin Nunes last year, but actually facilitated Nunes’s public (and distorted) disclosure of that sensitive information.  (Recall this norm-busting tweet?:  “So sad that the Department of ‘Justice’ and the FBI are slow walking, or even not giving, the unredacted documents requested by Congress.  An embarrassment to our country!”)  Moreover, in his March 29 letter, Barr emphasized that Trump “has stated publicly that he intends to defer to me and, accordingly, there are no plans to submit the report to the White House for a privilege review.”  Nevertheless, with Trump nothing is beyond the pale or too shameless, so there’s at least some possibility of a formal executive privilege claim based on an “open files” theory.

If that happens, the House (or House Committees) could sue in court to enforce the subpoenas.  Charlie Savage is right that, in the first instance, the courts would likely encourage the parties to keep negotiating “to accommodate both branches’ needs.”

If, however, the judiciary eventually had little choice but to assess the merits of the privilege claim, how would Trump fare?  There’s no way to tell for certain because, as Savage notes, “few disputes have resulted in definitive judicial rulings that could serve as guideposts if both sides dig in over the Mueller files.” Indeed, courts have never before resolved any privilege claim predicated on DOJ’s “open law enforcement files” rationale, and therefore there’s no direct precedent to speak of.  (As far as I’m aware the first time the Executive branch ever characterized the “open law enforcement files” nondisclosure policy in terms of a constitutional privilege was in the 1983 case involving EPA Administrator Anne Gorsuch, 556 F. Supp. 150 (D.D.C.).  The court in that case did not reach the merits, and the Administration eventually disclosed most or all of the documents Congressman Dingell had demanded.)

As I mentioned in my earlier post, however, I think there’s a good chance the courts would reject the privilege claim here, for at least four reasons.

First, such a claim would, at best, be viewed as a subset of the “deliberative process” component of executive privilege, which “does not shield documents that simply state or explain a decision the government has already made or protect material that is purely factual, unless the material is so inextricably intertwined with the deliberative sections of documents that its disclosure would inevitably reveal the government’s deliberations.”  In re Sealed Case (Espy), 121 F.3d 729, 737 (D.C. Cir. 1997).  This excluded category probably describes most or all of Mueller’s findings, although it’s imaginable that some of those findings would reveal internal deliberations of Mueller’s office.  (There’s no way for us to assess such questions now.)

Second, no court has ever identified a separate component of a constitutional privilege that’s designed to prevent targets, defendants and/or jurors from learning what the government knows (the “road map” concern).  It’s possible the Supreme Court would recognize such a new variant of executive privilege — but by no means certain.

Third, even if the materials in question were in some sense covered by a constitutional “deliberative process privilege,” that privilege is qualified and “can be overcome by a sufficient showing of need.”  Espy, 121 F.3d at 737.  One recent district court judge read Espy and similar precedents to require the Court, in a case of a congressional subpoena, to “balance the competing interests on a flexible, case by case, ad hoc basis, considering such factors as the relevance of the evidence, the availability of other evidence, the seriousness of the litigation or investigation, the harm that could flow from disclosure, the possibility of future timidity by government employees, and whether there is reason to believe that the documents would shed light on government misconduct, all through the lens of what would advance the public’s—as well as the parties’—interests.”  House Committee on Oversight & Gov’t Reform v. Lynch, 156 F. Supp. 3d 101, 112–13 (D.D.C. 2016).

Because of the acute, significant congressional and public interests in this case, involving the past conduct and present capabilities of a sitting President to perform his constitutional duties, such balancing is likely to be resolved in favor of congressional disclosure, perhaps with some safeguards designed to deter leaks. (See more on this point from Jessica Marsden and Andy Wright here.)  Again, though, it’s hazardous to speculate about the outcome of such a fact-intensive, all-things-considered balancing without knowing much more than we do about what Mueller has found and how its disclosure to Congress (and/or the public) might affect ongoing and future investigations.

Fourth and finally, DOJ may have waived such a claim of privilege, both because of whatever information Barr does choose to disclose about Mueller’s findings, and because the Department is reported to have already generously shared with congressional committees many “open file” records involving the Russia investigation and related matters (e.g., the disclosure of the Carter Page FISA order).  Cf. House Committee on Oversight & Gov’t Reform, 156 F. Supp. 3d at 114 & n.10 (rejecting the privilege claim because “the barn door on these issues has been thrown wide open” by a thorough Inspector General investigation, such that “whatever incremental harm that could flow from providing the Committee with the records that have already been publicly disclosed is outweighed by the unchallenged need for the material”).

* * * *

Finally, it’s important to stress that whatever the merits might be of such a  potential “protection of open law enforcement files” objection to congressional disclosure, it would most likely be temporally limited:  As OLC recognized in 1986, once an investigation has been closed, most 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.”  As the Linder Letter explains, “we have sought whenever possible to provide information about closed, rather than open, matters. This enables Congress to analyze and evaluate how statutory programs are handled and the Department conducts its business, while avoiding the potential interference that inquiries into open matters entail.”

4.  Information that might “unduly infringe on the personal privacy and reputational interests of peripheral third parties”

Finally, in his March 29 letter Barr also referred to potential redactions of “[i]nformation that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.”

Barr did not explain how he is defining “peripheral” third parties.  Presumably that category does not include the President or any other current federal officials, in which case any redactions on this ground might not be terribly controversial.

If, however, Barr does redact information about uncharged government officials, or about other individuals whom Congress doesn’t consider to be merely “peripheral,” and Congress objected, what would happen then?

As the 2000 “Linder Letter” explained, because “the reputations of individuals mentioned in internal law enforcement and litigation documents could be severely damaged by the public release of information about them, even though the case might ultimately not warrant prosecution or other legal action,” DOJ “takes very seriously its responsibility to respect the privacy interests of individuals about whom information is developed during the law enforcement process or litigation.” (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 explanation 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, as I explained in my earlier post, there’s 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, at least two other examples are noteworthy:

First, Special Counsel Jack Danforth’s 2000 report regarding the ATF’s confrontation with Branch Davidians at Waco included criticism of 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.”

Second, there is, of course, the salient example of Leon Jaworski’s “road map,” which offered Congress all of the granular factual details of what Jaworski and the grand jury had uncovered about President Nixon’s wrongful conduct.

What about the widespread, well-deserved condemnation of then-FBI Director Jim Comey’s public criticism of Hillary Clinton’s use of a private email server in a July 2016 press conference?  As I wrote in my earlier post, Comey well deserved the censure he received because of what he said at that press conference.  But as the DOJ Inspector General rightly explained, that’s not because Comey violated a nonexistent categorical rule against commenting critically about uncharged conduct.

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 reports to Congress and in any public account of the Mueller investigation.  Former Director Comey’s unfortunate and harmful breach of protocols and norms therefore shouldn’t be seen as an obstacle to disclosure of any aspects of Mueller’s report that are critical of President Trump and other federal officials –which is presumably why Barr has already represented that he’s limiting this possible category of redactions only to “peripheral” figures in the investigation.  (And of course there’s no DOJ policy counseling against including critical information of individuals in counterintelligence briefings to the intelligence committees — something that presumably happens whenever the department discovers that U.S. persons are implicated in a foreign threat.)

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* Starr himself thought that a statutory disclosure obligation of the Independent Counsel, 28 U.S.C. §595(c), superseded the prohibition of Rule 6(e) (see note 18 of his report), but Judges Sentelle, et al. had already rejected that argument.  See In re North, 16 F.3d 1234, 1243-44 (D.C. Cir. (Spec. Div.) 1994).

Photo: Alex Wong/Getty Images

 

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).