For those of us who care deeply about the rule of law and accountability, there’s good news and bad news to be had from William Barr’s Senate confirmation testimony for attorney general.
First, the good news. In the wake of the sham appointment of Matthew Whitaker as acting attorney general (over Senate-confirmed deputy attorney general Rod Rosenstein), Barr showed himself to be a legitimate nominee. President Trump is a Republican, so his pick won’t please everyone. The howls that Barr is unfit for the position or should pre-commit to a recusal from the Russia investigation are misguided. Unlike the “new normal” among Supreme Court nominees, Barr was largely candid and forthright—albeit lawyerly—in answering hot-button questions.
Notable takeaways: He believes in transparency and the rule of law; he loves the Department of Justice and has enduring respect for its career employees, including those in the FBI; he properly believes that use of the constitutional pardon power is not without limits and, if abused, can amount to obstruction of justice under the criminal laws; he deemed Russia a “potent rival” of the United States and has “no reason to question” the intelligence assessment that Russia interfered with the 2016 presidential election; he stated very clearly that, if directed by Trump, he would refuse to fire Robert Mueller without legitimate cause—in fact, he called it “vitally important” that Mueller finish the job; he confirmed that witness tampering is illegal; and he pledged not to be bullied by anyone (read: the president of the United States).
Barr also said that Rosenstein has no concrete plans to leave DoJ. This continuity is probably good news for the American public, and upends the wall-to-wall coverage of Rosenstein’s alleged imminent departure. But that’s not the only public lore that Barr unveiled as off-the-mark.
The bad news is that, while months of discourse has focused on whether the “Mueller report” will be made public, Barr signaled that there probably won’t be any “tell-all” tome for potential public consumption in the first place. As he properly noted, there are two reports referenced in the language of the special counsel regulations—one by the special counsel and the other by the attorney general.
The first one is “confidential” and goes to the attorney general exclusively. The point of that report is to “explain the prosecution or declination decisions reached by the Special Counsel.” Disclosure of that kind of information in the special counsel’s files is governed by routine DoJ regulations. Those don’t authorize public release of documents relating to “subjective observations” and even limit release of factual matters. In short, how prosecutors make decisions in individual cases is not the kind of information that the public has a legal right to know.
The second report is the one that people have been calling the “Mueller report.” But that report involves “Notification and reports by the Attorney General”—not the special counsel.
Moreover, the circumstances under which the attorney general would generate such reports are sharply circumscribed. Basically, if the attorney general disagrees with a “proposed action” by Mueller, he needs to tell Congress in writing. Those reports to Congress may be made public if the attorney general “determine[s] that public release of these reports would be in the public interest.”
But even if such reports contained the kind of detailed information that people are expecting to be in a report, the attorney general may never need to generate one.
The reason is that the regulatory standard for stopping a proposed action by Mueller is high; the attorney general must decide that the proposal “was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.”
The clearest possible culprit here would be a proposal by Mueller to indict President Trump. Under non-legally-binding DoJ guidance, that’s a “no-go.” Rosenstein indicated he would follow that guidance, and Barr testified that he sees no reason to change it (although he hasn’t read it in a while).
Mueller’s actions with respect to other individuals (who are not president of the United States) will undoubtedly pass as having been done by-the-book. Barr won’t mess with Mueller on that front. Under the regulations, therefore, it’s highly possible that there will be nothing for Barr to report to Congress—and thus nothing to be made public even if Barr were inclined to do so.
So now what?
Congress could pass legislation overriding the regulations and requiring a full public report, as was the case under the since-lapsed statute that governed the Whitewater investigation. Republicans in Congress have blocked such efforts so far.
Barr could amend the regulations as attorney general (they were promulgated by DoJ in the first instance, not by Congress)—but that’s highly unlikely.
The House of Representatives could subpoena the first report—the one by Mueller to Barr that describes the special counsel’s charging decisions. President Trump would likely ask a court to halt that subpoena, arguing that executive privilege protects it from disclosure. That argument is tricky; executive privilege is not a blanket defense for any president. It must bend to other public interests, including criminal investigations. Both Nixon and Clinton lost that battle in court.
The bigger problem with a congressional subpoena of a confidential memo explaining Mueller’s charging decisions is a structural one. As a constitutional matter, it would set a potentially dangerous precedent by giving Congress too great a role in overseeing prosecutors’ decisions to start, pursue, and end particular criminal investigations. Congress is a political animal; enabling politically motivated criminal prosecutions is a stepping stone to tyranny.
There is no question that the framers of the Constitution designed a tripartite federal government precisely to avoid tyranny, which our forebears fled in the form of the kng of England. If Mueller can’t prosecute Trump, and Congress can’t look at the facts Mueller painstakingly gathered and use them for legislative oversight and possible impeachment of a president, then we have a problem of extraordinary magnitude.
Even a conservative-leaning Supreme Court that’s likely to favor an expansive view of executive power should agree. A ruling that leaves the president utterly unaccountable despite (in theory) a federal prosecutor’s evidentiary dossier of wrongdoing would—itself—be unconstitutional.