The subpoenas haven’t yet been issued, though. Here’s what comes next.
Attorney General William Barr now says he plans to release the Mueller report, with some redactions, by mid-April. But House Democrats are saying that’s nowhere near good enough.
On Wednesday, the House Judiciary Committee voted to authorize Chairman Jerry Nadler (D-NY) to issue subpoenas to try and get Mueller’s full report, as well as underlying evidence and other materials.
Now, these subpoenas have not yet been issued — Nadler says he’ll still give Barr a chance to comply voluntarily. But he wants his committee to see the full Mueller report, “without redactions” and “without delay.”
It’s highly unlikely that a totally unredacted Mueller report will be released to the public anytime soon. The full report likely addresses sensitive intelligence topics and investigations that are still continuing.
So the real battle here is on two main fronts:
How much of the publicly released report will be redacted? Barr says he plans to redact four types of information: grand jury material, sensitive intelligence, matters that could affect ongoing investigations, and infringements on the privacy rights of “peripheral third parties.” Furthermore, it is possible that President Donald Trump will try to assert executive privilege to block the release of some information. Democrats and others will likely push to minimize the number and nature of those redactions.
Will key members of Congress get to review the unredacted report in a private setting? Though a full release of the public report isn’t in the cards, one possibility is that the Justice Department could let members of Congress review it for themselves, to assure them there’s no malfeasance or cover-up. This could be the “Gang of Eight” (the House and Senate leaders and intelligence committee chairs and ranking members), the House Judiciary Committee, or some other restricted group.
Nadler’s subpoena threat could be a hard-nosed negotiating tactic, in hopes of getting Barr to make more concessions toward Democrats’ demands than he’s currently offering. If his committee does issue subpoenas to try to force the report’s release, though, a lengthy legal battle will likely ensue. And there will be outside legal efforts to try to force the disclosure of more information.
The redacted Mueller report, explained
After a week of ambiguity, Barr confirmed last Friday that he did indeed plan to release Mueller’s report itself rather than writing his own summary of it. “I do not believe it would be in the public’s interest for me to attempt to summarize the full report,” the attorney general wrote.
But Barr also made clear that he only intends to release a redacted version of the report, and he explained what types of information he planned on redacting.
1) Grand jury information. Mueller convened a grand jury to issue subpoenas and hear witness testimony. The grand jury is a powerful investigative tool — witnesses have to come in and testify alone, without even their lawyers. Accordingly, there are legal prohibitions against releasing secret grand jury material.
This poses the prospect that any information Mueller obtained through the grand jury process — but that hasn’t already been made public — will be redacted from Barr’s version of Mueller’s report. The attorney general wrote that some of this information “by law cannot be made public.” It’s unclear how much of the report’s information this would apply to (though the grand jury is known to have been used more for Mueller’s Russian interference probe than his obstruction of justice probe). Another key question is how broadly Barr will interpret “grand jury information” or whether he will actively try to push for more disclosure, as Barbara McQuade writes.
Still, even if Barr does redact a great deal, there will be other efforts to make this information public. For instance, the Reporters Committee for Freedom of the Press petitioned the judge overseeing that grand jury on Monday, and asked her to “enable the release of the Special Counsel’s Report to the public to the greatest extent possible.” According to CNN’s Katelyn Polantz, that judge — Chief Judge Beryl Howell of the US District Court in DC — “has sided with significant public access attempts in the past.”
2) Material that the intelligence community thinks could compromise sensitive sources and methods: Mueller’s investigation, which tried to assess the Russian government’s interference with the 2016 election, surely used a great deal of sensitive intelligence information. Accordingly, Barr says he’ll redact any information that could compromise secret sources or methods of intelligence collection.
This issue has already come up in the context of the Russia probe. Back when Rep. Devin Nunes (R-CA) released his memo on FISA surveillance of former Trump campaign adviser Carter Page, he faced a chorus of criticism from Democrats for potentially revealing “sources and methods.”
There are undoubtedly cases in which sensitive sources do need to be shielded, but critics have argued that government tends to use the “sources and methods” justification too broadly to try and conceal information officials don’t want to get out.
3) Material that could affect ongoing “matters”: Barr’s letters, and previous public reporting, have made clear that Mueller looked into several issues that he did not resolve, but rather ended up handing off to other Justice Department offices for further investigation.
We don’t know how many matters Mueller referred elsewhere. These could be mainly about third-tier players unconnected to Trump, but they could also be about potential crimes in Trumpworld that didn’t tie directly to “Russian interference with the 2016 election.” In any case, the Justice Department won’t want to reveal any information that could affect ongoing investigations.
4) Information that could affect the privacy and reputational interests of “peripheral third parties”: Barr’s fourth category of redactions is an interesting one. Before this letter, many speculated he would attempt to redact information relating to uncharged individuals. But this appears to be a much more narrowly tailored category: “peripheral third parties.” It’s unclear what information the Mueller report might contain that could affect the privacy of unimportant players.
In any case, these are the four categories of redactions that Barr says he currently plans to make. All of these could be applied in a reasonable way, or they could be overused to hide an excessive amount of information — it’s not clear how Barr will apply them yet.
What about executive privilege?
There’s one more way information from the Mueller report could theoretically be blocked from public release — if the president asserts executive privilege over it.
This could be particularly important for Mueller’s obstruction of justice findings. As the obstruction investigation was taking place in 2017, White House lawyer Ty Cobb agreed to make many White House officials available for interviews. But there was a condition: Trump wanted to reserve the right to assert executive privilege over information they provided later on. According to Trump’s lawyers, Mueller agreed to these terms.
Trump’s former lawyer John Dowd asserted last week on Byron York’s podcast that he expected the president to take advantage of that deal and use executive privilege to block a great deal of information in the report from being released.
However, Trump also said last week that it “wouldn’t bother me at all” for the Mueller report to be fully released.
Then, in Barr’s letter Friday, he wrote: “Although the president would have the right to assert privilege over certain parts of the report, he 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.”
This language is hardly a rock-solid commitment. Some have argued that the letter’s language — “defer to me” seems to leave open the possibility that Barr himself will assert executive privilege on behalf of the White House. But Barr doesn’t mention privileged material as among his four categories of planned redactions, and it does appear that, as of now, the White House isn’t getting involved (though Trump could change his mind).
Congressional Democrats’ two goals
Democrats’ rhetoric has tended to focus on demanding a release of the “full Mueller report” — something that is a nice slogan but very unlikely to actually happen — in particular, Justice will fight tooth-and-nail against jeopardizing secretive sources and ongoing investigations. (Though Democrats have pointed out that, in response to congressional Republican requests last year, DOJ handed over some Russia probe documents while Mueller’s investigation was still ongoing.)
A nonbinding resolution that recently passed the House of Representatives unanimously doesn’t call for a full unredacted public release, but it does ask for two things:
- The public release of the Mueller report, “except to the extent the public disclosure of any portion thereof is expressly prohibited by law”
- “The full release to Congress of any report”
That latter point is an important distinction. Democrats are aware that the Justice Department has good reasons to redact some information for public release — though they obviously want to try and minimize those reactions to only essential topics.
But Democrats also say they want members of Congress to be able to review the unredacted report for themselves, in a private setting. “The Department should not be able to simply invoke the same reasons for redacting the report from public view as a shield against disclosure to a coequal branch of government,” Democrats wrote in a letter to Barr Monday.
Barr has currently made no offers to let them do any such thing. So far, his two letters have spoken only about releasing a (redacted) Mueller report to both Congress and the public — he has shown no willingness to let Congress see more in private. If Democrats keep pushing on the matter, that could be a potential compromise. One possible concern here is that Congress is very leaky, so perhaps the full report could be restricted to a select bipartisan group.
For now, there’s no deal. Nadler’s Judiciary Committee voted to authorize subpoenas on Wednesday. But that doesn’t mean they’re issuing a subpoena just yet — they say they still “hope to avoid resort to compulsory process.” For now, this seems to be an attempt at negotiation, an effort to get leverage in hopes of reaching a compromise.
In any case, a congressional subpoena to get the Mueller report might sound dramatic, but it would also likely lead to a murky legal battle that could last years and go up to the Supreme Court. So Democrats would surely prefer to reach a deal with Barr now. But they also want to make clear that if they think he is trying to hide important information, this is a legal fight they’re willing to have.