In other words, tamp down your expectations, people, because DOJ regulations don’t compel full disclosure and precedent leans against it.
But this concedes too much up front. The starting point for this whole argument should be that there is nothing that precludes robust public disclosure of Mueller’s findings, and that, in a situation as unusual as this one, we are absolutely right to expect and insist on it.
It’s true that DOJ regulations governing the special counsel’s work do not require maximal disclosure. They direct him to “provide the Attorney General with a confidential report explaining” his “prosecution or declination decisions,” upon the “conclusion” of his work.
The regulations then instruct the attorney general to provide the bipartisan leaders of the judiciary committees in both chambers with “an explanation” of the “conclusion of the Special Counsel’s investigation.”
This gives Barr great discretion to decide how much information from Mueller’s findings to transmit to Congress. But as Andrew Kent, a law professor at Fordham University, points out in an interview, there’s no reason to read this as precluding maximal disclosure.
“The language is not limiting in any way,” Kent told me. “An attorney general who wanted to could easily read this to allow a broad and inclusive report.”
In his recent confirmation hearing testimony, Barr was somewhat squirrelly about his intentions with regard to the release of Mueller’s findings. He kept saying in one way or another that his release would be “consistent with the regulations.”
Many have read this to mean that Barr is not required to do any more than the absolute minimum. While this is narrowly correct, we don’t have to read his comments this way. Again and again, Barr vowed he’d do all he can in the direction of transparency while remaining consistent with the regulations. If so — and we should hold him to it — then there is nothing stopping expansive disclosure.
A ‘by the book’ prosecutor?
As Kent points out, this is the case at every point in this procedural chain. Much is being made of the idea that Mueller is a “by the book” prosecutor who will follow the regulations to the letter of the law. But this doesn’t preclude robust disclosure.
The regulations say that Mueller must provide an “explanation” for his decisions either to prosecute or not to prosecute. If he decides either that President Trump or his associates have not committed criminal wrongdoing, or that Trump has done so but should not be indicted as a sitting president, he can explain this decision in a level of detail that informs the public as to the conduct that did happen.
This is the case when it comes to many aspects of this whole affair. It’s the case on Trump conduct that may have obstructed justice. (Trump’s repeated efforts to derail the probe may not have crossed over into criminality, but Mueller may have established more detail about it.) It’s also the case on “collusion.” (Even if Mueller doesn’t find a criminal conspiracy, he may have found more detail about how deep the coordination between the Trump campaign and Russia may have gone.)
“Mueller can give the attorney general whatever he wants,” Kent said. “Even if he doesn’t find that additional charges are warranted, he can explain the basis for that conclusion. He can explain what he did find and why it doesn’t rise to the level of criminality.”
Those findings do remain confidential, but the key point is that the attorney general has discretion to transmit a great deal of that to Congress — if he wishes.
“The special counsel regulations in no way restrict the fullest possible public disclosure by the attorney general of Mueller’s findings and the evidence backing them up,” Harvard Law professor Laurence Tribe told me.
Tribe also noted that if Mueller has chosen not to indict Trump because of Justice Department policy protecting a sitting president, that would argue in favor of transmitting as much information as possible to Congress “for consideration in the context of possible impeachment.”
Say no to anything short of maximum disclosure
There’s also been chatter that Barr might be constrained from releasing information gathered during grand jury proceedings. But Kent suggested that, precisely because of this problem, Mueller presumably collected plenty of information in other ways allowing release, such as through direct interviews and documents collected via other means.
“While federal law does protect the secrecy of certain information gathered by grand juries, this should not significantly interfere with Attorney General Barr's ability to provide a full report to Congress on the Mueller investigation, if that is what he wants to do,” Kent said.
This affair has torn the country in half for two years. Even if Trump’s efforts to obstruct the probe are not criminal, they constitute an extraordinary assault on our institutions. The recent New York Times exposé shedding new light on the corrupt and depraved nature of this assault underscores how little we know about all that went on.
Let’s also not forget that Mueller was tasked with investigating a foreign power’s sabotaging of our democracy irrespective of whether Trump’s campaign conspired with it. It is only through indictments and congressional fact-finding that we’ve learned of that campaign’s startling scope and reach.
The public has a right to as much disclosure as possible on all of this. More to the point, there is no good reason for this not to happen. That is the point at which this debate should begin.