Resolved: The President’s Conduct with respect to the Special Counsel’s Investigation was Consistent with the Take Care Clause and his Constitutional Oath

Last year Professor Andy Wright published an article arguing that presidential interference with criminal investigations conducted by the Department of Justice may violate the president’s constitutional duties under Article II even if it does not constitute obstruction of justice or any other criminal offense established under federal statutory law. See Andrew M. Wright, The Take Care Clause, Justice Department Independence, and White House Control, 121 W. Va. L. Rev. 100 (2018). Specifically, he points to the president’s obligation to “take Care that the Laws be faithfully executed,” U.S. const. art. II, § 3, and his oath to “faithfully execute the Office of President of the United States, and [] to the best of my Ability, preserve, protect and defend the Constitution of the United States,” U.S. const. art. II, § 1, cl. 8. Wright contends that “if the President interferes with the investigative or prosecutorial function in bad faith, he can violate the Take Care Clause and his Oath of Office,” even if the president’s actions violate no criminal law.

At some level of generality, it is difficult to imagine anyone disagreeing with this proposition. That is to say, no one would argue the president satisfies his obligations under the Take Care and Oath Clauses simply by not committing a crime. At least I don’t think anyone would argue that.

More controversially, Professor Wright argues that the president’s constitutional obligations require prophylactic measures to separate the Justice Department from the White House and thereby “protect the integrity of . . . criminal investigation[s] from political interference, including interference by the President himself.” 121 W. Va. L. Rev. at 105. Specifically, he points to policies adopted by every administration since President Ford that limit contacts between the White House and the Justice Department by requiring most such contacts be channeled through the offices of White House counsel and the attorney general. 121 W. Va. L. Rev. at 141-50. These policies, and related practices such as the refusal of White Houses to comment on open investigations and pending cases, are not merely matters of etiquette and “norms,” Wright contends, but flow from the Take Care and Oath clauses.

Whether or not one embraces the specifics of Wright’s thesis, his article suggests an important line of questioning for current and former Trump administration officials, particularly from the White House counsel’s office and the top levels of the Justice Department. For example, as Wright points out, in the first week of the Trump administration White House Counsel Don McGahn issued a contacts policy memorandum designed “to ensure that DOJ exercises its investigatory and prosecutorial functions free from the fact or appearance of improper political interference.” 121 W. Va. L. Rev. at 149. Did the president approve this policy? Was he aware of its contents? Was he ever advised that actions he proposed or directed would violate the policy? Was the president’s conduct as described in volume II of the Mueller report consistent with the letter or spirit of this policy?

Apart from Trump administration officials (and members of the president’s legal team), is there anyone with actual or purported constitutional law expertise who would defend the proposition in the title of this blog post? There are notable scholars, such Professors Jack Goldsmith and Josh Blackman, who have advanced strong arguments that the president’s conduct in connection with the Mueller investigation (at least insofar as it involved the exercise of presidential powers) did not violate the criminal obstruction laws. But neither contends this conduct was consistent with the president’s obligations under the Take Care and Oath clauses.

Here is a political stunt that might serve a useful and clarifying purpose. The chair of the House Judiciary committee and the ranking member of the Senate Judiciary committee should write their Republican counterparts to propose a hearing devoted to a panel of legal experts who would defend the proposition that the president’s conduct has been consistent with the Take Care and Oath clauses. Chairman Graham and Ranking Member Collins could be asked to propose a list of potential witnesses to appear at such a hearing.

We can’t have a debate unless someone is prepared to defend this proposition.

Local Rule 57.7 regarding Pretrial Publicity and the Release of the Mueller Report

The Justice Department has filed this “Government’s Notice Regarding Report of the Special Counsel” in the pending criminal case against Roger Stone.  The notice informs Judge Amy Berman Jackson that among the redactions to the Mueller report are “redactions made in consideration of Local Rule 57.7(c) and the Court’s order so that the public release of the Special Counsel’s report as redacted does not pose either a ‘substantial likelihood of material prejudice to this case’ . . . or a ‘reasonable likelihood ‘ of ‘interfer[ing] with a fair trial or otherwise prejudic[ing] the due administration of justice.'” Although information regarding the Stone prosecution will be redacted from the version of the Mueller report released to Congress and the public on April 18, however, the notice informs the court that the Justice Department “plans to make available for review by a limited number of Members of Congress and their staff a copy of the Special Counsel’s report without certain redactions,” including those related to the Stone case.

Local Criminal Rule 57.7 restricts public dissemination of information by attorneys involved in criminal cases where “there is a reasonable likelihood that such dissemination will interfere with a fair trial or otherwise prejudice the administration of justice.” It also authorizes the court “[i]n a widely publicized or sensational criminal case” to issue a special order governing extrajudicial statements and other matters designed to limit publicity that might interfere with the conduct of a fair trial (Judge Jackson issued such an order in the Stone case on February 15, 2019).

The Justice Department’s theory is that the public release of the Mueller report, to the extent it contains information relating to the Stone prosecution, could be considered a violation of the local rule and/or the court’s order. It further suggests that providing this information to Congress in a manner in which Congress could make the information publicly available also could be considered a violation.

DOJ advanced a similar theory in connection with the terrorism prosecution of Zacharias Moussaoui. The congressional joint inquiry into the 9-11 attacks intended to hold a hearing at which witnesses, including ironically then-FBI Director Robert Mueller, would be questioned about matters such as the process by which the FBI conducted its investigation of Moussaoui. DOJ contended that such questions in a public hearing would violate Rule 57.7 and sought to persuade Judge Brinkema that she should in essence prohibit any such questioning (by preventing Mueller or other government witnesses from answering) in a public hearing.

DOJ’s request was properly rejected by Judge Brinkema. As the joint inquiry pointed out, Rule 57.7 explicitly provides that nothing in it is intended “to preclude the holding of hearings or the lawful issuance of reports by legislative, administrative, or investigative bodies.” Moreover, any interpretation of the rule that allowed the court to interfere with congressional proceedings would raise serious separation of powers issues.

For similar reasons it is debatable whether either the rule or the court’s order pursuant to it would provide a lawful basis for restricting congressional access to the Mueller report (or perhaps the redaction of material from the report in the first place). Nevertheless, the Department’s proposal that members and staff first be given limited access to a less redacted version of the report is a common sense approach to the problem (and, of course, is similar to the Freeh/LaBella procedure we have previously discussed). If, following this initial review, Congress requests copies of a less redacted version of the report, DOJ will “seek guidance” from the court on this request.

It is important to note that the “less redacted” version of the Mueller report will “include,” but not be limited to, portions of the report related to the Stone case. One can infer that DOJ is prepared to negotiate with Congress about which redactions can be “unredacted” (that’s probably not an actual word) for purposes of review by designated members/staff. This suggests to me that the Department understands that eventually Congress will be given an opportunity to see a mostly if not entirely unredacted version of the report and to make its case to some judge (whether Judge Jackson in the Stone case, Chief Judge Howell as the supervising authority for the grand jury or Judge Walton who is hearing the FOIA case) as to why it needs that version of the report.

In other words, we are moving closer to a Freeh/LaBella solution to the redaction controversy.

Barr on Grand Jury Redactions

I have not watched most of Attorney General Barr’s testimony over the past couple days, but I gather from clips and reporting that he has made a few remarks regarding grand jury material redactions from the Mueller report. I have a few brief comments on these statements.

First, Barr notes, correctly, that under the Mckeever decision no grand jury material can be provided to Congress or the public except pursuant to one of the express exceptions set forth in Rule 6(e). He also indicates he does not see at the moment that any of those exceptions apply. He suggests, however, a willingness to discuss 6(e) redactions once the report is released, specifically with regard to any redactions that might be material to understanding the report or its conclusions.

Barr mentions the possibility of “workarounds” with regard to the redacted material. By this he might mean providing non-grand jury material that would provide the needed context or substantiation to substitute for whatever was redacted. He also may be leaving open the possibility of seeking permission from the court to release 6(e) material, although he appears disinclined to go that route at the moment.

Barr made one comment of potential legal significance. With regard to grand jury material in the report to Congress by independent counsel Ken Starr, Barr suggested that this was immaterial to the current circumstances because Starr was operating pursuant to a statute that “overrode” the provisions of Rule 6(e). Barr here is referring to 28 U.S.C. § 595(c), discussed in my prior post, which provided “[a]n independent counsel shall advise the House of Representatives of any substantial and credible information . . . that may constitute grounds for an impeachment.”

Barr is correct that in Starr’s view § 595(c) overrode the requirements of grand jury secrecy. As explained in Starr’s report to Congress (see note 18), however, out of an abundance of caution he also sought express authorization from the Special Division to disclose grand jury material. The Special Division then authorized Starr to release grand jury material and provided “this authorization constitutes an order for purposes of Federal Rule of Criminal Procedure 6(e)(3)(C)(i) permitting disclosure of all grand jury material that the independent counsel deems necessary to comply with the requirements of § 595(c).”

The Special Division’s order does not say that section 595(c) overrides the requirements of grand jury secrecy. It may or may not have agreed with Starr on this point. By issuing an order pursuant to the “judicial proceeding” exception, however, the panel indicated that Starr’s disclosure was also justified under that exception, presumably because it was “preliminarily to” the “judicial proceeding” of impeachment.

Of course, it is impossible to know from the Special Division’s brief order what role section 595(c) played in its decision to invoke the “judicial proceeding” exception. It may have believed, for example, that section 595(c) effectively gave the independent counsel the authority to decide what materials were necessary for the House to receive. (That Starr’s application to the Special Division is still under seal makes it particularly difficult to discern the panel’s thinking on this). Nevertheless, it is hard to see how its order makes sense unless impeachment is the “judicial proceeding” on which it was based. This in turn indicates that a disclosure can be “preliminarily to” an impeachment proceeding even if no impeachment inquiry has yet been formally initiated.

It should also be noted that the Freeh/LaBella disclosure was not made pursuant to section 595(c). Although it is possible that the Justice Department could attempt to distinguish that disclosure on the grounds that an impeachment inquiry was underway (although on a different subject than that of the disclosure), there is nothing in the language of Rule 6(e) or in any of the relevant precedents to suggest that this is a material distinction.

In short, if Barr is merely suggesting that the absence of section 595(c)’s reporting requirement makes it inappropriate to seek here the kind of blanket authorization to disclose grand jury material received by Ken Starr, he makes a reasonable point. If, on the other hand, he is arguing that Chief Judge Howell would be without power to order disclosure of grand jury material in the Mueller report because of the absence of a “judicial proceeding,” he is in my opinion mistaken.

The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report

On its face, Friday’s D.C. Circuit decision in McKeever v. Barr, involving a historian’s request for access to grand jury materials from 1957 for purposes of a book he is writing, might seem to have little relevance to redactions in the Mueller report. In fact, however, the decision turns on the court’s interpretation of a 1974 precedent in which Chief Judge Sirica authorized “disclosure of a sealed grand jury report to aid in the inquiry by the House Judiciary Committee into possible grounds for impeachment of President Nixon.” McKeever, majority slip op. at 9 n. 3; see In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219 (D.D.C. 1974). More precisely, it turns on the McKeever court’s interpretation of the D.C. Circuit’s 1974 en banc interpretation of Judge Sirca’s decision. See Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974) (en banc).

As explained below, this decision is potentially  significant with respect to the Mueller report.

The McKeever majority ruled that judges lack inherent authority to disclose grand jury materials protected by Fed. R. Crim. P. 6(e) outside of the express exceptions set forth in that rule. Acknowledging the court’s decision in Haldeman was ambiguous on this point, McKeever construed Haldeman as approving Judge Sirica’s disclosure on the grounds that a House impeachment inquiry is a “judicial proceeding” for purposes of Fed. R. Crim. P. 6(e)(3)(E)(i), which is one of the explicit exceptions to grand jury secrecy set forth in the rule. McKeever, majority slip op. at 9 n. 3. It therefore concluded Haldeman did not stand as a precedent in favor of a court’s inherent authority to release grand jury materials.

Judge Srinivasan dissented in McKeever. While he noted that the “judicial proceeding” exception to Rule 6(e) “arguably applied” to the release of a grand jury report to Congress in connection with an impeachment investigation, he did not interpret Judge Sirica’s decision as relying on that exception. Instead, in Judge Srinivasan’s view the best reading of the en banc opinion in Haldeman was that it approved Judge Sirica’s exercise of inherent authority to release the report. See McKeever, dissent slip op. at 2-5.

Whatever one’s evaluation of the relative strengths of these positions, the majority opinion in McKeever is, at least for the moment, the controlling law in the D.C. Circuit. Thus, Congress cannot now ask the district court to release grand jury material in the Mueller report based on the court’s inherent authority. The Justice Department likewise could not support such a request even if it agreed with it (which it clearly would not, given that DOJ urged the narrow reading of the court’s authority adopted by the McKeever majority).

This does not mean, however, that Congress has no options for obtaining access to grand jury material in the Mueller report. It merely means that any disclosure to Congress must be pursuant to one of the express exceptions to grand jury secrecy listed in Rule 6(e).

Continue reading “The D.C. Circuit’s McKeever Decision Supports Use of the Freeh/LaBella Procedure for Handling the Mueller Report”

A Proposal for Dealing with Mueller Report Redactions

In our political culture of contempt and pervasive paranoia, it is hardly surprising that Attorney General Barr’s refusal to release immediately the unreacted Mueller report has led many to accuse him of a coverup. So while I agree with Ben Wittes that everyone should chill out and wait to see what Barr actually produces in the next week or so, the reality is that any redactions will raise suspicions.

Fortunately, there is a relatively simple way to address this problem. The idea comes from the impeachment proceedings against President Clinton in 1998. The House Judiciary committee, which was reviewing the allegations against Clinton in the Starr report, wanted access to the Freeh and LaBella memos, internal Justice Department documents that recommended appointment of an independent counsel to investigate campaign fundraising violations during the 1996 presidential election cycle. The Justice Department took the position that these memoranda could not be shared with Congress because, among other reasons, they contained grand jury material protected under Fed. R. Crim. P. 6(e). (It would later turn out DOJ had been rather overly enthusiastic about designating grand jury material, including for example a quote from a Dick Morris book).

In light of the impeachment investigation (and the associated political pressure from Congress), the Clinton Justice Department agreed to ask the judge supervising the grand jury, Chief Judge Norma Holloway Johnson, to allow the committee access to the memoranda. After a couple of attempts (the committee, through House counsel, had to file its own motion after the court denied DOJ’s first request), Judge Johnson agreed to allow the committee limited access to the memoranda. As Peter Baker described the court’s decision: “Each side could send a single staff member to read the memos, but no copies could be made and no notes taken.” Peter Baker, The Breach: Inside the Impeachment and Trial of William Jefferson Clinton 183-85 (2000). That way the committee would have a basis for requesting any additional material it believed was relevant to its proceedings (it ultimately did not do so).

A similar process could be used to deal with redactions from the Mueller report. The court could permit two Judiciary committee staffers (one majority, one minority) to review the unreacted report. They would be prohibited from taking notes or disclosing the contents of the report publicly. If, however, there were redactions the committee believed to be improper or to contain important information, it could ask the court to release that information.

This seems like a reasonable way for protecting any legitimate Justice Department interests while reassuring the public that the attorney general is fulfilling his promise of maximum transparency.

Why Congress May Not Want a Completely Unredacted Mueller Report

Yesterday we discussed potential redactions to the Mueller report with respect to grand jury material protected under Federal Rule of Criminal Procedure 6(e). Today we will discuss the other category of redactions mentioned in Attorney General Barr’s March 24 letter, namely “any information that could impact other ongoing matters, including those that the Special Counsel has referred to other offices.” In other words, the report contains some information about, or that “could impact,” ongoing criminal matters relating to the subject of the special counsel’s investigation and/or individuals involved involved in that investigation as targets, subjects or witnesses.

Historically, the Justice Department has been extremely reluctant to share its internal investigative and litigation files with Congress. Attorney General Robert Jackson famously declared the executive branch position in a 1941 opinion responding to congressional requests for FBI reports and other internal DOJ documents relating to investigations of labor unrest in industrial establishments with naval contracts. See Position of the Executive Dep’t Regarding Investigative Reports, 40 Op. Atty Gen. 45, 1941 U.S. AG Lexis 28 (Apr. 30, 1941). Jackson argued that such disclosure “would not be in the public interest” because it would “seriously prejudice law enforcement” (by tipping the government’s hand to actual and potential defendants), assist foreign adversaries, undermine the use of confidential informants and perpetuate “the grossest kind of injustice to innocent individuals.” Id.  at **2-4. Jackson allowed, however, that there were exceptions to the executive’s position, including that “pertinent information would be supplied in impeachment proceedings, usually instituted at the suggestion of the Department and for the good of the administration of justice.” Id. at *12.

In fact, Congress has been successful in obtaining internal Justice Department documents on a number of occasions. See generally Congressional Investigations of the Department of Justice, 1920-2012: History, Law, and Practice, CRS Report for Congress 15-49 (Nov. 5, 2012). In most if not all cases, however, the congressional investigation involved alleged wrongdoing at the Justice Department itself, not merely an attempt to learn about wrongdoing being investigated by the Department. Moreover, Congress has been far more successful at obtaining information from closed investigations. Thus CRS notes:

In the last 85 years, Congress has consistently sought and obtained access to information concerning prosecutorial misconduct in Department of Justice officials in closed cases; and access to pre-decisional deliberative prosecutorial memoranda– while often resisted by the Department– is usually released upon committee insistence, as well. In contrast, the Department rarely releases– and committees rarely subpoena– material relevant to open criminal investigations.

Id. at 2.

This suggests that the Justice Department would be on solid ground if it redacted information from the Mueller report relating to open criminal investigations, particularly in the absence of any claim of wrongdoing regarding how the Department is handling those investigations. (Note the potential irony that those in Congress who are alleging wrongdoing at the Department, namely House Republicans, are likely not those who would be pushing for full disclosure of the Mueller report). Moreover, congressional investigating committees might want to think twice before insisting that information relating to open criminal investigations be produced since this will tip off potential defendants as to what allegations are being investigated and what evidence exists to support them.

Of course, the committees will want to scrutinize any redactions to make sure that they are no broader than necessary to protect the integrity of ongoing investigations. They will properly demand assurance that none of the redacted information will be shared with potential defendants, including the president. They may even ask the attorney general to promise that specified Justice Department officials are free to share information they believe to be relevant to impeachment proceedings with the House Judiciary committee (I am not placing any bets on how likely they are to get that).

At the end of the day, though, Congress may not want to take a knee-jerk position against any redactions related to open criminal investigations.

Congress’s Response to Potential Redaction of Grand Jury Material in the Mueller Report

In his letter yesterday to Congress, Attorney General Barr reiterated that “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.” Barr, noted, however that “[b]ased on my discussions with the Special Counsel and my initial review, the report contains material that is or could be subject to Federal Rule of Criminal Procedure 6(e)” (emphasis added), which restricts “disclosure of matters occurring before the grand jury.” Before deciding how much of the report can be released, the Justice Department must “identify the 6(e) material that by law cannot be made public.”

Although the redaction of grand jury material runs counter to Congress’s goal of full transparency for the Mueller report, it may on balance work in Congress’s favor. First, unless the Justice Department adopts a broad interpretation of grand jury secrecy, there should be little need to redact information in order to comply with Rule 6(e). The only material clearly covered by the rule would be direct references to what transpired before the grand jury. Thus, for example, discussion of evidence (such as documents or witness interviews) without reference to the grand jury should not fall within the rule even if that evidence was presented to the grand jury. See Federal Grand Jury Secrecy: Legal Principles and Implications for Congressional Oversight, CRS Report for Congress 11-13 (Jan. 10, 2019). Because Mueller presumably drafted the report with an understanding of Rule 6(e)’s strictures, it is reasonable to assume that the need for redactions will be minimal.

Second, Congress can seek judicial authorization for disclosure of any material withheld under 6(e). It can do this by filing an application with the chief judge in the district where the grand jury was empaneled (presumably the chief judge of the United States District Court for the District of Columbia, although Mueller also had a grand jury in Virginia), asking for a determination whether the material in question falls with 6(e) and, if so, authorization of disclosure of the material to a congressional committee. Although it is possible that a committee could obtain access to protected material for oversight purposes under the court’s exercise of its inherent authority, its argument will be considerably stronger if it is acting pursuant to the impeachment power. See CRS Report, supra, at 41 (“where a congressional committee has sought grand jury materials in connection with the contemplated impeachment of a specific public official, several courts have recognized that court-ordered disclosure may be available pursuant to the ‘judicial proceeding’ exception.”). Thus, if the Justice Department attempts to withhold a significant amount of grand jury material, it may inadvertently hasten the advent of formal impeachment proceedings.

Finally, the Office of Legal Counsel has recognized that in “rare circumstances” the president’s “Article II responsibilities may independently justify the disclosure of pertinent grand jury information to him and his advisors.” Whether the President May Have Access to Grand Jury Material in the Course of Exercising his Authority to Grant Pardons, 24 OLC Op. 366, 367 (Dec. 22, 2000). It reached this conclusion in part based on case law allowing congressional access, noting “if congressional access to grand jury materials may be independently justified on the basis of its Article I power, it would be anomalous to contend that presidential access to such materials could not be justified on the basis of the President’s Article II powers.” Disclosure of Grand Jury Matters to the President and Other Officials, 17 OLC Op. 59, 68 (Sept. 21, 1993). OLC, however, cautioned that such disclosures not be routine, be undertaken only in accordance with carefully crafted procedures, and that obtaining advance court approval would be preferable.

Given that the Mueller grand jury was investigating possible crimes of the president and his close associates, it would seem inadvisable (to say the least) for the president to get access to any grand jury material withheld from Congress. In light of the OLC opinions allowing such disclosures under some circumstances, including where the president believes it would be relevant to his exercise of the pardon authority, the House Judiciary committee should demand that the attorney general notify it of any special access to grand jury information granted to the president.

And DOJ would be well-advised to keep any Rule 6(e) redactions to the bare minimum.

How Much of the Mueller Report Will Barr Disclose?

On March 22, 2019, Attorney General Bill Barr notified Congress “pursuant to 28 C.F.R. § 600.9 (a) (3) that Special Counsel Robert S. Mueller III has concluded his investigation of Russian interference in the 2016 election and related matters.” He further informed it that he was in receipt of the special counsel’s “confidential report explaining the prosecution or declination decisions” made in the course of the investigation. Barr advised that he was reviewing the report and anticipated advising the Congress of the special counsel’s “principal conclusions” possibly as early as this weekend. Finally, Barr indicated that he would consult with the special counsel and deputy attorney general “to determine what other information from the report can be released to Congress and the public consistent with the law, including the Special Counsel regulations, and the Department’s long-standing practices and policies.” This latter process will apparently be separate from the advice regarding the “principal conclusions” and presumably be on a longer timeline.

We don’t know, of course, what the long-anticipated “Mueller report” actually says, and we also don’t know how detailed it is. As Barr notes, the regulations only require the special counsel to explain the prosecution and declination decisions he has made. With respect to prosecution decisions, this could simply consist of a summary of publicly available information as the basis for each prosecution is readily inferred from indictments and other court filings. The scope of declination decisions is a bit trickier. Presumably this could include anyone who was identified as a subject or target of the investigation but not ultimately indicted. It might include anyone whom the special counsel seriously considered indicting but did not. It might include the president, but then again it might not because the president cannot be indicted (according to a longstanding Justice Department view) and therefore there was no declination decision for the special counsel to make.

There is also considerable room for interpretation as to what the special counsel’s “explanation” of his decisions should look like. Read narrowly, it could simply consist of a list of individuals charged or not charged along with a brief statement of the reason (e.g., “Individual 1 was not charged with obstruction of justice due to insufficient evidence of corrupt intent.”). But it could reasonably be read much more broadly to allow the special counsel to provide a road map of all the investigatory steps he took and evidence he accumulated so that the reader fully understands why the special counsel reached the decisions he did.

One thing that is clear, however, is that the intended audience for the special counsel’s report is not Congress or the general public. The regulations provide for a “confidential” report to the attorney general only. See 28 C.F.R. § 600.8 (c). In promulgating the special counsel regulations in 1999, the Clinton Justice Department made clear that this report was not to be shared with Congress or the public:

Much legitimate concern has been expressed about the Final Report requirement of the Independent Counsel Act, with respect to both the incentives it creates to over-investigate a matter and the fact that, since it often becomes a public document, it can do harm to legitimate privacy interests. On the other hand, it is appropriate for any federal official to provide a written record upon completion of an assignment, particularly a federal official who has functioned with substantial independence and little supervision. In major cases, federal prosecutors commonly document their decisions not to pursue a case, explaining the factual and legal reasons for the conclusions they have reached.

The principal source of the problems with the Final Report requirement as set forth in the Independent Counsel Act is the fact that the Report typically has been made public, unlike the closing documentation of any other criminal investigation. This single fact both provides an incentive to over-investigate, in order to avoid potential public criticism for not having turned over every stone, and creates potential harm to individual privacy interests.

Therefore, these regulations impose a limited reporting requirement on all Special Counsels, in the form of a summary final report to the Attorney General. This report will be handled as a confidential document, as are internal documents relating to any federal criminal investigation. The interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel will be addressed in the final set of reporting requirements, discussed below.

64 Fed. Reg. 37038, 37041 (July 9, 1999).

This language suggests that the special counsel report should be similar to other declination reports written by federal prosecutors, but need not be as comprehensive as an independent counsel report. In any event, it is treated as an internal Justice Department document, the kind that the executive branch has argued should be considered “the crown jewels of executive privilege” (see here at pages 15-19) and may not be shared with Congress or the public.

But what of the public’s interest in being informed of the reasons for the special counsel’s actions, alluded to in the last sentence of the Federal Register notice? This is addressed in the following special counsel regulation:

The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action-

     *   *   *

(3) Upon conclusion of the Special Counsel’s investigation, including, to the extent consistent with applicable law, 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.

28 C.F.R. § 600.9 (a).

It should be noted that Barr’s letter of March 22 already notified the committees of the conclusion of the special counsel’s investigation and the fact that there had been no instances of the attorney general nixing a proposed action of the special counsel. It therefore satisfies the requirements of the regulation with the arguable exception of the “explanation for each action,” which presumably refers to an explanation for the termination of the special counsel’s investigation.

Exactly what is meant by this “explanation” is unclear. As Professor Marty Lederman notes, it “might conceivably consist of only a brief outline explaining why Mueller closed up shop, which is all the regulation formally requires.” It seems likely that this is what Barr is referring to when he speaks of the special counsel’s “principal conclusions.” This might be something on the order of a very summary description of the special counsel’s findings without getting into specifics of particular declination decisions. Any greater detail would seem to be more than what the regulation requires.

Lederman argues, however, that this is “merely a floor, not a ceiling.” Barr seems to be thinking along similar lines when he states he will consult with Mueller and Deputy Attorney General Rod Rosenstein to determine whether additional information can be released consistent with the law and DOJ practices and policies. But this additional information release would seem to be beyond the scope of the regulation itself. If the intent of the regulation were to authorize the attorney general to release any part of the special counsel report not otherwise prohibited by law, it picked an awkward way of expressing it.  And if this is Barr’s interpretation, he cannot claim to be legally required to withhold anything other than grand jury information.

In short, it is hard to see how one parses the applicable rules to allow disclosure of only a portion of the Mueller report. The report in essence is a glorified declination memorandum, and either Barr is free to release Mueller’s explanation for his declination decisions or he is not. If he is, it is hard to see how that will not involve getting into both the details of internal prosecutorial decision making (of the kind Lederman correctly notes DOJ does not like to share) and factual information that will impinge upon individual privacy interests. If he is not, it would seem he can share little beyond the report’s “principal conclusions.”

It should be noted that the above analysis is based on the logic of the executive branch’s own regulations and policies. It is not determinative of what would (or should) happen in a legal or constitutional fight between Congress and the executive over access to the Mueller report. There is also an interesting question about the right of White House counsel and the president’s personal lawyers to the Mueller report. It has been reported that the White House will be allowed to review the report for purposes of making executive privilege claims (primarily, one would imagine, those related to the presidential communications branch of the privilege) before it is disclosed to Congress. But will that review encompass the entire report, or only that portion which Barr decides can otherwise be disclosed?

Laufman on Leaks

Pertinent to my last post, white collar defense attorney (and my former Hill colleague) David Laufman has published this article for the Huffington Post on “Prosecuting Leaks of Classified Information.” It provides an excellent overview of the laws governing national security leaks, and the challenges and risks involved in prosecuting leakers.