Next up in the fight over Robert Mueller’s final report: the redaction wars.
House Democrats want to see everything related to the special counsel’s nearly two-year-old investigation into Russia meddling in the 2016 presidential election. But their open-book demands stand at odds with the Justice Department’s desire to black out sensitive areas throughout Mueller’s 400-page submission.
The high-stakes chess match will play out on both political and legal grounds, and so far neither side has yet to show any signs of compromise.
As a result, the battle could spill into the courts, setting up a protracted legal confrontation that inevitably causes waves in the thick of the 2020 White House race. For President Donald Trump, the possibility of freshly unveiled Mueller bombshells dropping while he runs for reelection could be devastating. But Democrats are in a tough position: pursuing their legal challenge at all costs could feed the Trump-approved narrative that they’re overzealous, but giving up risks angering their own Trump-hating base.
“It seems to be shaping up as a classic collision of interests by two coordinate branches of government, each with their own respective legitimate interests that may be in conflict with one another,” said David Laufman, who ran the Justice Department’s counterintelligence unit from 2014 to 2018 and had a key role overseeing the early stages of the FBI’s Russia investigation before Mueller’s appointment.
Here are the battle lines: Attorney General William Barr has pledged to produce Mueller’s report to Congress by mid-April or sooner. But Democrats say they’re unlikely to be satisfied with what they get if the attorney general follows through on his vow to redact several categories of information: classified details, grand jury testimony, material relevant to ongoing investigations and nuggets that could cause “reputational” harm for “peripheral third parties.”
In a preemptive strike, Judiciary Committee Democrats on Wednesday approved a resolution authorizing the use of a subpoena to force the release of the full Mueller report and its underlying evidence.
“Ordinarily, these kinds of disputes are resolved through an accommodation process that sometimes unfolds in cascading agreements, revisions to the agreement and further revisions to the revisions of the agreement,” Laufman said. “It’s early days here, but there’s reason to believe this may not be resolved between the department and the House.”
Congress and the Justice Department have been on a collision course over the Mueller report since Democrats won control of the House last November.
Under DOJ regulations, Mueller at the conclusion of his probe only had to explain in a confidential report to his supervisors why he chose to bring charges against some people but not others. From there, Barr has the discretion over how much of the special counsel’s report to give Congress and ultimately to make public.
While Barr has vowed to be as transparent as possible, he’s adhered to his stance that certain redactions “are required.”
“Everyone will soon be able to read it on their own,” Barr wrote in a letter sent last Friday to lawmakers.
What Congress actually gets — and what the public sees — could go a long way toward determining whether House Democrats launch impeachment proceedings against the president. House Speaker Nancy Pelosi and other party leaders have said they want to see the report’s contents before making any decision.
Lawmakers and the public got a preview of those findings last month when Barr released a four-page letter summarizing the special counsel’s “principal conclusions.” He said Mueller did not find a criminal conspiracy between the Trump campaign and Moscow to sway the 2016 presidential election, but that the special counsel did not exonerate the president in an obstruction of justice probe. Barr, however, said he would not charge the president with a crime.
Trump has touted the letter as a complete vindication. And while the president initially said he would let Barr decide how much of the report ultimately saw daylight, he has lately railed against Democrats’ calls for a complete unveiling of the document. Trump’s GOP allies in Congress struck a similar tone on Wednesday, rebuking the Democrats’ subpoena authorization vote.
With these tensions swirling, Democrats showed that they are gearing up for a legal fight over the redactions. The Democratic chairs of six powerful committees sent DOJ their own nine-page memo outlining their legal arguments in the event Barr releases a redacted Mueller report.
For starters, the Democrats said they don’t buy the notion that lawmakers can’t handle classified information. They do exactly that on a daily basis, they argued, with secure facilities on Capitol Hill designed for just that purpose.
They also countered the need to withhold materials related to an active investigation. The memo notes that DOJ acceded to GOP demands last year to produce thousands of pages “of highly sensitive” documents “related to this very same investigation — which of course was open and ongoing at the time.”
Separately, the memo goes after the need to redact grand jury information, which is legally protected in many instances. But Democrats argued the special counsel used hundreds of search warrants and voluntary witness interviews to collect evidence that is not subject to the same secrecy rules — and thus should be revealed. They called on Barr to join them in a request that the judge supervising Mueller’s grand jury release the panel’s materials.
Lastly, Democrats argued that DOJ has “no constitutionally recognized privilege” to block the release of information that could cause “reputational” damage to third parties. Here, Democrats singled out the prospect that Mueller collected damning information on Trump’s family and his closest aides, arguing that these findings should not be withheld.
Anticipating the legal fight ahead, Democrats urged Barr to prepare a “detailed log of each redaction and reasons for supporting it.”
Rep. Jerrold Nadler, the Judiciary Committee chairman, argued during Wednesday’s subpoena debate that he’s on firm legal footing in objecting to these redactions. The New York Democrat even held aloft the hefty copies of past independent counsel reports into Richard Nixon and Bill Clinton, which ran hundreds of pages.
Both documents played key roles as Congress weighed impeachment. And, notably, both documents included grand jury testimony.
“We need these materials to fulfill our constitutional obligations,” Nadler said. “Period.”
Speaking with reporters after the vote, Nadler said he wasn’t willing to negotiate with DOJ over redactions. “The committee must see everything, as was done in every prior instance,” he said, adding that some materials may just need to be seen by lawmakers but not released to public.
Republicans on Wednesday came to Barr’s defense, arguing that Mueller was not under the same legal requirements as past independent investigators to tell Congress about impeachable offenses. Indeed, the rules were rewritten to remove that clause following Ken Starr’s Clinton-era probe.
In addition, some GOP lawmakers maintained that Democrats were essentially asking the attorney general to break the laws surrounding grand jury information and classified intelligence.
“He can’t comply. The law precludes him from complying,” said Rep. John Ratcliffe, a former George W. Bush-era U.S. attorney from eastern Texas.
But GOP Rep. James Sensenbrenner, a former Judiciary Committee chairman, said he’d join Democrats in pushing a judge to release grand jury information.
“We ought to do what we need to do first, and that’s go to court and let the judge make the decision,” he said.
Several legal experts monitoring the Mueller report said they expect Barr will follow through on his commitment to release as much as he can about the special counsel’s investigation, including the extent of Russian President Vladimir Putin’s involvement and motivations, as well as how the Trump campaign reacted to Moscow’s well-documented overtures.
“I think there’s going to be an overriding interest in transparency here as to the facts of what campaign officials and other U.S. persons did with respect to the probe,” said Ryan Fayhee, a former DOJ National Security Division prosecutor who handled counter-espionage and counter-intelligence matters.
But Fayhee said he also expects Barr will make some of his most significant redactions after consulting with the intelligence agencies that supplied original intelligence about the Russian hacking and its fallout.
Among the items most likely to be removed are the names of specific sources and the sensitive methods that the U.S. government used to obtain information Mueller used. Also absent will be details about any active Russian election interference campaigns.
“I’m not sure we should be airing those publicly,” said Fayhee, now a partner at Hughes Hubbard & Reed.
David Kris, a former Obama-era assistant attorney general for national security, said he expects Mueller’s team wrote up its findings in a way that make it easy for Barr to deal with redactions — by segregating the most sensitive data in certain sections or appendixes.
“I’d think Mueller was on notice that it’d be a wise choice to write this report so as to facilitate the eventual publication of as much of it as possible,” said Kris, the founder of the intelligence consulting firm Culper Partners.
Others expect Barr will compromise in the hopes of avoiding an embarrassing court loss for Trump that would echo the unanimous 1974 Supreme Court ruling that forced Nixon to hand over documents to Watergate criminal investigators.
“He doesn’t want some U.S. v. Nixon showdown where the court bench slaps the president,” said Asha Rangappa, a former FBI special agent and senior lecturer at Yale’s Jackson Institute for Global Affairs. “That’s not what you want during a campaign year.”
Regardless, many Democrats sense they’re hurtling toward a legal battle.
“I think there’s going to be a great number of redactions,” said Tennessee Rep. Steve Cohen, a Democratic member of the Judiciary Committee. “We’ll have to have a court decide what’s proper and what we should see.”
Article originally published on POLITICO Magazine