How the legal battle for the full Mueller report could play out

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APRIL 16, 2019

The Mueller report is expected to be released Thursday, but we may not learn that much. Attorney General William P. Barr has said he’ll redact along four broad categories, meaning key information could remain undisclosed.

As a result, congressional Democrats are gearing up to fight for the unredacted report. It’s probably the only chance lawmakers and the public have to learn all that special counsel Robert S. Mueller III found in his nearly two-year investigation into Russian collusion and how it intersected with the Trump campaign.

Here’s a guide to the coming, possibly lengthy legal battle over the Mueller report:

Congress subpoenas this report from the Justice Department

This is the opening salvo from Democrats in Congress. And it will center on the House Judiciary Committee, which oversees the Justice Department. Its chairman, Rep. Jerrold Nadler (D-N.Y.), has said he has every intention of issuing a subpoena to demand that Barr hand over the full report to Congress — he already had his committee vote (along party lines) to authorize him to issue it.

“Anything short of the entire report and underlying evidence would be inadequate,” Nadler said.

Rep. Adam B. Schiff (D-Calif.) has used his authority as head of the House Intelligence Committee to request any information in the report related to “the counterintelligence investigation” — which, translated, means anything tied to Russia’s attempt to influence the 2016 presidential election. (The top Republican on the committee backs him up on this request.)

Rep. José E. Serrano (D-N.Y.), chairman of a House appropriations subcommittee that oversees the Justice Department’s budget, hasn’t ruled out withholding or putting conditions on the agency’s budget until Barr complies.

Don’t expect Barr to hand over the full report now that it’s subpoenaed. He’s argued that it contains information that by law should remain secret, such as grand jury testimony, classified information, information related to ongoing investigations and information that could “unduly infringe” on people’s personal privacy. That means much of it won’t be readable, because most of the investigation centered around testimony before a grand jury.

“My strong suspicion is a number of those phrases will read: ‘by … the … of . . . therefore,’ ” said Jessica Levinson, a law professor at Loyola University.

Congress goes to court

Once Barr ignores the subpoena, Congress can take the attorney general to court and ask a judge to weigh in. Nadler has said he’s ready to fight this all the way to the Supreme Court, but legal experts are divided on whether that will work.

The main sticking point here is grand jury information, which is how Mueller got much of his testimony. By law, grand jury testimony is supposed to remain secret save for a few exceptions.

One notable exception is for related judicial proceedings. Could Congress convince a judge that it’s conducting a related judicial investigation and thus needs the grand jury information in the Mueller report? Nadler told reporters he’s considering arguing that the grand-jury material would be relevant to any impeachment proceedings Congress might want to undertake.

Jack Sharman, a former counsel to Congress during the Whitewater investigation in the 1990s, is skeptical that will work.

“Usually when Congress goes to court, it loses,” he said. “Either because it somehow lacks standing, the legal right to be there in the first place. Or because the court punts, saying it’s a political question.”

But Nelson W. Cunningham, a former federal prosecutor under Rudolph Giuliani and a top lawyer in the Clinton White House, thinks Congress has a shot, since there’s legal precedent for the Justice Department to hand this kind of information over. In the 1970s, Congress got the special counsel report for the Watergate investigation after asking a court for it.

The catch for Congress: That 1974 decision allowed them to see the Watergate report, but they couldn’t share it with the public.

Congress could ask for some information but not all

If lawmakers decide they won’t win the battle for the full report, they could try to argue in court that Barr was overzealous in his redactions and that he should have blacked out a paragraph, not a whole page.

The problem for Congress is that they don’t know what they don’t know, Levinson pointed out. How can they argue that a blacked-out line is something that should be public when they don’t know what that line says? “Congress is, in a way, flying without flight instruments to the extent they just don’t know,” she said.

Barr could offer up something to try to avoid a legal battle

Earlier this month, Barr told Congress he’s willing to consider redactions on a case-by-case basis. That didn’t satisfy lawmakers then and it probably won’t now. But perhaps it’s indicative of Barr’s willingness to compromise to avoid a court battle. He could hold a closed-door session with just key lawmakers to see the full report. That’s how the Justice Department already briefs Congress on highly classified information.

Trump or Barr could drag this out so long that the urgency for the report fizzles

There’s a ticking clock on all this: the 2020 election. It doesn’t preclude any legal battle for the report, but it could make it politically difficult for Democrats in Congress to keep going. Trump could argue Democrats are laying the groundwork to ultimately impeach him rather than let an election take place.

That’s a politically potent argument the closer it gets to November 2020, so it’s in Trump’s favor for Barr to drag out judicial proceedings with bureaucratic end-runs.

Congress could begin impeachment proceedings against Barr

Remember how Congress started all this by subpoenaing Barr to hand over the full report? If he doesn’t comply, Congress could vote to hold him in contempt of Congress, and Democrats ostensibly have enough votes in the House of Representatives to do this, if most in the party agree.

But would Barr’s own Justice Department lawyers try to enforce that contempt vote, which would mean sending their boss to jail? Probably not.

So the next step for Congress would be impeachment proceedings against Barr. Cunningham said something like this has only happened once or twice in U.S. history, but he sees a case for Congress to make that this is as important as it gets.

“Since it’s at the very heart of the congressional-executive battle, one could see the Judiciary Committee saying: ‘The attorney general is meant to be the people’s lawyer, not the president’s lawyer. An attorney general who is refusing to comply with court orders flies in the face of everything an attorney general is.’”

If the legal battle gets to this point, we’re in uncharted territory.


Courtesy/Source: Washington Post

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