Earlier this week, House Democrats, led by House Judiciary Committee Chairman Jerry Nadler, announced that they intended to subpoena the Justice Department for an unredacted copy of the Mueller report—without bothering to wait and see whether Attorney General Barr would through on his repeated promises to release as much of the report as he could consistent with department policy and federal law. On Tuesday, I criticized this decision as an unfair political prejudgment of Barr’s summary work:
As Lawfare’s Benjamin Wittes notes, Barr has provided an entirely reasonable blueprint for redactions: “Barr has laid out a short time frame in which he has promised to make a capacious set of disclosures subject to a few discrete areas of necessary confidentiality.” If there’s any question whether Nadler appreciates this sort of “necessary confidentiality,” one need only look at how he handled similar situations in the past: Back in 1998, the Washington Examiner reported Tuesday, Nadler opposed the release of an unredacted Starr Report because of the importance of protecting “grand jury material” and “people’s privacy rights, people who may be totally innocent third parties, what must not be released at all.”
Barr, in other words, is behaving exactly as Nadler should hope the attorney general would act in such a situation: working to prepare the report for public release consistent with all applicable laws. Barr has even said he is willing to appear voluntarily before Congress to answer questions about that work once the report is released. But rather than opting to wait and see what Barr hands over, Nadler has instead chosen to treat Barr like a recalcitrant, threatening a tool, the subpoena, ordinarily reserved for compelling the testimony of the unwilling.
On Wednesday, the Judiciary Committee voted to authorize Nadler’s subpoena. But the chairman clarified one important point: He said he would not issue the subpoena at once, but would sit on it while waiting to see whether the report Barr hands over meets their standards for transparency.
“I will give him time to change his mind,” Nadler said before the vote. “But if we cannot reach an accommodation, then we will have no choice but to issue subpoenas for these materials.”
This is a welcome adjustment. From his confirmation hearings onward, Barr has given every indication that he is committed to releasing as much of the Mueller report as he can; more recently, he has told Congress that special counsel Robert Mueller is assisting him on deciding what must be redacted to protect sensitive intelligence and what can safely be released. For Nadler and his colleagues to subpoena the report now would have communicated that they had prejudged Barr as a bad actor and his treatment of the report as irredeemably tainted. Simply threatening to do so, by contrast, signals to Barr that they remain skeptical of him, but are open at least to seeing the fruits of his work before taking drastic action. Barr should feel pressured to release as much of the report as he possibly can, so all this is to the good.
The political concern behind the subpoena remains. Whatever information the Mueller report ends up containing about the Trump camp’s deeds or misdeeds, Nadler and his colleagues will still feel a political incentive to suggest that the real thing would have been even worse were it not for the intrusion of Trump’s hand-picked AG Barr. Even if the Mueller report is released in nearly pristine shape, we may well still see Nadler issue his subpoena anyway, despite knowing he’s unlikely to claw any more information from the Justice Department, simply to try to portray Barr as shady.
For now, however, Nadler’s willing to wait and see. We all should do the same.