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.

A Cert-Worthy Speech or Debate Case

In United States v. Renzi, handed down yesterday, the Ninth Circuit definitively rejected the Speech or Debate arguments advanced by the former congressman. I will have more to say about this decision in coming days (for previous posts on the Renzi matter, see here, here and here).

For now I would just observe that the Ninth Circuit’s opinion expressly rejects the D.C. Circuit’s holding in United States v. Rayburn House Office Bldg., 497 F.3d 654 (D.C. Cir. 2007) that the Speech or Debate Clause embodies a non-disclosure privilege precluding law enforcement officials from obtaining or reviewing evidence of “legislative acts” in connection with an investigation of Members of Congress.  The Ninth Circuit panel stated that we “disagree with both Rayburn’s premise and its effect and thus decline to adopt its rationale.”

The Rayburn court held that a search of congressional offices would violate the Speech or Debate Clause unless there was a procedure to screen out documents of a legislative nature before the remaining materials were reviewed by prosecutors or other law enforcement officials. The Renzi court not only rejects the need for pre-screening of legislative materials before executing a search warrant or wiretap, it indicates that documentary evidence of legislative acts can be subpoenaed directly from Members of Congress. The Renzi opinion is thus much more favorable from that standpoint of prosecutors than is the Rayburn opinion.

The government unsuccessfully sought cert in the Rayburn case, arguing that the issue in that case was one of “extraordinary importance.” Now that there is a clear circuit split, the chances that the Supreme Court will grant cert are much higher. Since the law of the D.C. Circuit is much more important in this context than that of other circuits, I imagine that the government will likely support a grant of certiorari in Renzi.

There is a strong likelihood that the Supreme Court will soon be hearing the first important Speech or Debate case in thirty years.

Update: over at Volokh Conspiracy, Jonathan Adler also thinks Supreme Court review is a distinct possibility. So does Rick Hasen at Election Law Blog.


Does BLAG Believe that Members of Congress are Immune from Federal Wiretaps?

In a little-noticed amicus brief filed in June with the U.S. Court of Appeals for the Ninth Circuit, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives argued that the Justice Department’s wiretap of former Representative Rick Renzi was unconstitutional.  BLAG contends:  “The Wiretap Order clearly permitted the executive branch to seize communications concerning constitutionally protected legislative activities, and specifically concerning information related to a particular piece of legislation.  Such interception- especially of a purposeful, sustained nature—is patently inconsistent with the [Speech or Debate] Clause.”

BLAG’s argument begins with the premise that the “core purpose” of the Speech or Debate Clause “is to protect legislative independence from the encroachment of the executive and judicial branches.”  It then seeks to show that executive branch abuse of wiretaps threatens legislative independence, citing historical examples such as FBI wiretapping during the J. Edgar Hoover era and a 1961 case in which the Kennedy administration wiretapped a congressman’s meeting with a foreign representative in order to gain a political advantage over the congressman.  From this BLAG concludes that the Speech or Debate Clause should protect against executive branch interception of legislative communications.

In an amicus brief supporting the Justice Department, CREW accuses BLAG of “advocat[ing] a total ban on wiretapping the telephones of members of Congress.”  In theory, this accusation is overstated.  BLAG asserts in its brief that it is not claiming that Members of Congress are immune “from a properly authorized and administered wiretap.”  Instead, BLAG believes that this immunity only extends to interception of communications regarding “legislative information,” such as Renzi’s conversations with his staffers regarding the very land exchange legislation that lies at the heart of the allegations against him.

As a practical matter, however, it is not clear how BLAG’s position differs from a complete ban on wiretapping Members of Congress (and, for that matter, congressional staffers).  A wiretap of a Member of Congress is virtually certain to intercept some legislative information, and it is difficult to see how the Justice Department could screen out such information without first recording and analyzing it.  In the Rayburn case (involving the search and seizure of documents from a congressman’s office), BLAG contended that it would violate the Speech or Debate Clause for the Justice Department to use filter teams to review and separate privileged from non-privileged documents.  Similarly, BLAG objects here to the Justice Department conducting “spot checks” of potentially privileged conversations to determine if they in fact involve legislative matters.  Thus, there would seem to be no way that the Justice Department could intercept any conversations by a Member of Congress if there were any possibility that legislative matters might be discussed.

As a logical matter, moreover, BLAG’s rationale for constitutional protection would seem to apply to any wiretap of a Member of Congress.  After all, there would seem to be little relationship between the potential for abuse or intimidation, on the one hand, and the legislative nature of an intercepted conversation, on the other.  A Member’s conversations regarding non-legislative matters, such as political strategy, campaign fundraising or purely personal affairs, could surely be just as useful to an executive branch that was up to no good.

It is also worth noting that BLAG’s brief fails to mention the most famous example of executive surveillance of Members of Congress—the ABSCAM case.  In that case the Justice Department conducted a sting operation in which undercover agents purported to be foreign citizens offering bribes to Members of Congress in exchange for the Members agreeing to sponsor private immigration bills.  Would BLAG view these discussions as “legislative information” protected by the Speech or Debate Clause?   The answer is not entirely clear, but nothing in BLAG’s brief suggests otherwise.  Certainly the ABSCAM tapes would seem to be just as legislative in nature as the 1961 conversation between a Member of Congress and a foreign representative.

In short, if BLAG is not arguing for de jure legislative immunity from wiretapping, it is arguing for something very close to de facto immunity.




Washington Post Seeking Access to Jurors in William Jefferson Case

           The Washington Post reporter has asked Judge Ellis to provide him a list of jurors who served on the William Jefferson case so that he can attempt to contact them for interviews.  According to this letter, the reporter has obtained such information in the past on “high profile cases” from the clerk’s office. 

            If the court is not obligated to make such information public, it seems odd that it would provide juror information to media outlets seeking to interview them.

CREW to Me- Don’t Confuse Us with the Facts

            The organization Citizens for Responsibility and Ethics in Washington (CREW) put out this news release regarding a grand jury subpoena received by Representative Visclosky.  Entitled “WITH VISCLOSKY’S SUBPOENA, CREW ASKS — WILL HOUSE COUNSEL ONCE AGAIN STYMIE A CRIMINAL INVESTIGATION INTO A MEMBER OF CONGRESS?,” the essence of CREW’s point seems to be that it is per se improper for House Counsel to be involved with Speech or Debate or other privilege issues in connection with a criminal investigation of a Member of Congress.  According to CREW director Melanie Sloan, “Although members of Congress campaign against the ‘culture of corruption,’ behind the courtroom door — and out of the public eye – the House Counsel, acting on behalf of both the Speaker of the House and the Majority Leader, routinely steps in to protect members who have abused their offices and the public trust from prosecution. The Republicans and Democrats may not see eye-to-eye on much, but both parties agree members of Congress should be above the criminal laws that apply to the rest of us.”

            As a former senior counsel in the House Counsel’s office, I know a little bit about this subject so I telephoned Naomi Seligman, who is listed as the CREW contact person for this issue.  Had Ms. Seligman cared to speak with me, I could have explained to her the House Counsel does not represent Members of Congress in criminal investigations.  If Visclosky is a potential target of the grand jury investigation (which appears to be the case), the House Counsel will be unable to represent him due to the potential conflict between his personal interests and those of the House as an institution.  Accordingly, CREW’s statement that “if recent history is any guide, the House Counsel will soon step in and move to quash the subpoena” is simply false.

            If Visclosky should decide to move to quash the subpoena in whole or in part, the motion would be made by his personal counsel.  It is not uncommon for personal counsel to consult with House Counsel on this issue, given the latter’s expertise in Speech or Debate issues, but in my experience the decision is in no sense made by House Counsel (or by the Speaker to whom the House Counsel reports).  It is true that if a motion is filed, and an issue deemed of institutional significance to the House is raised, the House Counsel may file an amicus brief on behalf of the Speaker and/or the Bipartisan Legal Advisory Group.  

            Perhaps CREW has intentionally distorted its news release for purposes of making its point in the most simplistic way possible.  But if it were interested in actually understanding the process it is criticizing, I would have been happy to explain it to them.  But the gentleman who answered the phone refused to allow me to speak with Ms. Seligman, saying that she only speaks with “the press.”  Nor was he willing to let me speak with anyone else knowledgeable about the release (despite my explaining the reason for my call). 

            I guess that CREW is too busy preaching openness and transparency to practice it.

Hill Report on the Renzi Case

           The Hill reports that the judge (presumably referring to Magistrate Velasco) in the Renzi case has scheduled a special hearing to determine whether prosecutors improperly listened to privileged attorney-client communications captured during the wiretap of Renzi’s cell phone.  As the article notes, this is a separate matter from the Speech or Debate issues regarding the wiretap. 

            This matter does not seem to involve any legal or factual issues peculiar to congressional defendants and so it is not one that I have been particularly following.  It is worth noting, however, that The Hill article suggests that this incident, combined with the prosecutorial misconduct in the Stevens case, may reflect a pattern of abuse in the Justice Department’s investigations of Members of Congress.  A bit of a stretch, IMHO, but there you have it.    

Federal Prosecutors Push Boundaries of Illegal Gratuities Statute

 Justice Scalia’s opinion for a unanimous Court in U.S. v. Sun-Diamond Growers, 526 U.S. 398 (1999), begins dryly with the observation: “Talmudic sages believed that judges who accepted bribes would be punished by eventually losing all knowledge of the divine law.  The Federal Government, dealing with many public officials who are not judges, and with at least some judges for whom this sanction holds no terror, has constructed a framework of human laws and regulations defining various sorts of impermissible gifts, and punishing those who give or receive them with administrative sanctions, fines and incarceration.” 

Sun-Diamond involved a trade association which was convicted of having provided former Secretary of Agriculture Mike Espy “approximately $5,900 in illegal gratuities,” including tickets to the U.S. Open tennis tournament, luggage, meals and a crystal bowl.  These gifts were alleged to have violated the illegal gratuities statute, which prohibits giving anything of value to a public official “for or because of any official act performed or to be performed by such public official.” 

The Supreme Court reversed the conviction.  Although the indictment alleged that there were two matters in which the trade association had an interest pending before Espy at the time the gifts were given, there was no allegation of a specific connection between either of them and the gifts.  Instead, the instructions permitted the jury to convict if it found merely that the gifts were because of Espy’s official position.  As the Court noted, these instructions would permit conviction if the jury found the gifts were designed “to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.”  Moreover, the prosecution’s theory would lead to ridiculous results, such as “criminalize[ing] a high school principal’s gift of a school baseball cap to the Secretary of Education, by reason of his office, on the occasion of the latter’s visit to the school.”  The Court therefore rejected the government’s position in favor of a narrow reading of the statute.  

After Sun-Diamond, prosecutors could only charge under the illegal gratuities statute if they could prove a link between a thing of value conferred on a public official and a specific “official act” for or because of which it was given.  Combined with a subsequent decision of the D.C. Circuit, Valdes v. United States, 475 F.3d 1319 (D.C. Cir. 2007) (en banc), which narrowed the definition of “official act” to mean only formal actions connected to a “class of questions or matters whose answer or disposition is determined by the government,” Sun-Diamond made it extremely difficult to prosecute under the illegal gratuities statute.  Indeed, the Campaign Legal Center recently described the law as “toothless.” 

One consequence of these judicial decisions is that prosecutors have increasingly turned to “honest services fraud” as an alternative to charging illegal gratuities.  Without getting into the details of an honest services case (a controversial issue which may be the subject of a future post), an honest services count will typically allege that a public official received a stream of things of value in order to deprive the public of its right to the honest services of that official.  For example, last year’s indictment of Abramoff associate Kevin Ring alleged that Ring and other Abramoff conspirators “attempted to groom . . . public officials by offering and providing things of value with the intent of making those public officials more receptive to requests for official actions on behalf of their clients in the future.”  In other words, the honest services charge can be used to accomplish exactly what the Supreme Court said in Sun-Diamond could not be accomplished with the illegal gratuities statute. 

However, last week’s indictment of former congressional staffer named Frasier Verrusio, who worked for Representative Don Young as the Policy Director of the House Transportation Committee, contains no honest fraud count.  Perhaps this is because Verrusio is not alleged to have received a stream of things of value over time.  All of the gifts that Verrusio is alleged to have received were in the course of one all-expenses paid trip to New York for Game One of the 2003 World Series.   The indictment charges instead that Verrusio violated the illegal gratuities statute by accepting these gifts.

The indictment alleges that on October 17, 2003, Verrusio accepted an invitation from James Hirni, a lobbyist, to attend the World Series game.Hirni arranged for Verrusio to fly to New York on October 18 (cost $228.50), attend the game (cost $110) and stay overnight at a hotel (cost $300).During this trip, Verrusio and a Senate staffer named Trevor Blackann were entertained by Hirni and one of Hirni’s clients, an official from an unidentified “Equipment Rental Company” which had an interest in the Federal Highway Bill then pending before Verrusio’s committee.They were transported in a chauffeured SUV (cost $275 per person), taken to dinner ($115 per person) and a strip club ($150 per person), and Verrusio received a souvenir baseball jersey ($130).The indictment values all of the gifts received by Verrusio at about $1,300.


So how does the indictment establish that these gifts were “for or because of” an official act by Verrusio?The answer is somewhat murky.Equipment Rental Company had hired Hirni and his firm to seek three amendments to the Federal Highway Bill in August 2003, but the fact that Verrusio’s committee had a matter pending before it in which Equipment Rental Company had an interest does not make this case any different than Sun-Diamond.Indeed, it is not even clear from the indictment that Verrusio knew of this interest prior to accepting the invitation to the World Series game.The indictment does not allege any communication to Verrusio about the matter prior to the dinner in New York on October 18, when Verrusio, Blackann, Hirni, and the Equipment Rental official “discussed the Federal Highway Bill and Equipment Rental Company.”The indictment does not allege, however, that Verrusio was asked to take any particular action at that time.

To be sure, a reasonable person can infer from the circumstances that the gifts to Verrusio were for one or more of the following purposes: (1) to gain access to Verrusio (and Blackann) during the trip so that the interests of Equipment Rental Company could be discussed; (2) to build goodwill on Verrusio’s part toward Hirni and Equipment Rental Company; and (3) to encourage Verrusio to take favorable actions on the amendments desired by Equipment Rental Company during consideration of the Federal Highway Bill.However, none of these purposes (and certainly not the first two) appear to be sufficient under Sun-Diamond to violate the gratuities law.

Moreover, the allegations regarding Verrusio’s actions after the trip do not tend to establish any connection between the trip and a specific official act.The indictment alleges that on October 22, “Hirni emailed to [Verrusio] information about the three amendments that Equipment Rental Company was seeking to insert in the Federal Highway Bill.”On October 27, Verrusio replied, “apologizing for not responding sooner to Hirni’s October 22 email . . . [and] telling him that the amendments needed more work ‘for anyone to be able to help with progress . . . .’”This sounds more like a polite blow-off than anything else.

The indictment does not suggest that Verrusio ever did “help with progress” on the amendments.The three amendments were inserted into the Senate version of the Federal Highway Bill, but Verrusio, according to the indictment, did not play a role in this.The indictment does allege that Verrusio played a role in “protecting” the amendments after they had been inserted, but the only acts attributed to Verrusio in this regard was that he “suggested” to Hirni and his lobbying partner that they organize a letter writing campaign to counter the efforts of a rival industry group to strip the amendments out of the bill. It seems highly dubious that this “suggestion” qualifies as an “official act” under Valdes or that the gifts received by Verrusio were “for or because of” this act within the meaning of Sun-Diamond.

Legal analysis aside, there is something troubling about Verrusio’s prosecution here.There can be no question that Verrusio exercised extremely poor judgment, at best, in deciding to accept Hirni’s offer of a trip to the World Series.But in the absence of any evidence that Verrusio was asked to perform any official acts in connection with the gifts, or that he actually did perform any official acts for the benefit of Hirni or Equipment Rental Company, it seems hard to understand why prosecutors would treat this single incident as a criminal matter.

As Justice Scalia recognized in Sun-Diamondfederal law provides an intricate set of rules regarding permissible and impermissible gifts, and it would be contrary to this scheme to construe the illegal gratuities statute so broadly as to subsume all of these rules within it.Moreover, a broad reading of the statute would mean that nothing but the government’s discretion would prevent prosecutions of any Member of Congress or staff who received a gift from persons with interests in legislation before them.

As federal prosecutors have no special knowledge of the divine law, it is best not to tempt them with such discretion.