Patrick J. Leahy, a Democrat, represents Vermont in the U.S. Senate.
The parallels between then and now are many. In both sagas, a politically motivated theft — one a burglary, the other a hacking — led to an investigation described by the president as a “witch hunt.” In both instances, the sitting president attacked the investigators and fired the lead investigator, leading to concerns that he may have obstructed justice. And in both episodes, the ensuing investigation led to dozens of indictments reaching the closest aides of the president.
For President Trump, that includes his former national security adviser, his personal lawyer, a longtime political adviser, the chairman and deputy chairman of his campaign, and an aide who learned months before anyone else that Russia had “dirt” on Hillary Clinton in the form of “thousands of emails.”
In both investigations, the question ultimately became what did the president know, and when did he know it.
Now that special counsel Robert S. Mueller III has concluded his investigation and has submitted a report to Attorney General William P. Barr, I believe it would be a grave mistake for the president to follow in the footsteps of Nixon and seek to hide the truth from both Congress and the American people. Nixon fought the release of his secret White House recordings all the way to our highest court. He lost. If Trump attempts to hide the Mueller report, I believe he will lose, too.
This week, the president said the Mueller report should be made public. I hope he meant it. But all other signs indicate he’s preparing to mount an aggressive fight to keep at least portions of it hidden. In January, the White House reportedly hired 17 additional lawyers in anticipation of a battle over the report’s release. It has been said that the White House expects to review any report for executive privilege before it heads to Congress. And the president’s personal attorney, Rudolph W. Giuliani, even previously asserted that the president should be able to “correct” the report before its release — a claim Barr himself, thankfully, dismissed in response to my question during his confirmation hearing in January.
Confirmed as the attorney general last month, Barr has the authority to release the report. On Friday, he stated that he may advise Congress of the report’s principal conclusions as soon as this weekend, and will subsequently determine how much of the report to disclose to Congress and the public.
He should disclose all of it.
At his Senate confirmation hearing in January, Barr was clear that executive privilege cannot be used to cover up evidence of a crime. But Barr refused to commit to releasing the report, and would only promise transparency consistent with the law and Justice Department policies. Fair enough, but Barr pointed to two policies that, in concert, could lead to no transparency at all: one prohibiting the indictment of sitting presidents, and the other restricting the release of derogatory information about unindicted parties. Taken together, these constraints could amount to a transparency-stifling Catch-22 by which presidential misconduct remains hidden, resulting in a president who is effectively above the law.
If the attorney general attempts to hide presidential misconduct by relying on these policies, it would, in my view, forever tarnish the Justice Department.
On numerous occasions, the Justice Department has disclosed evidence from an investigation when no indictments resulted. In 2016, the department provided Sen. Charles E. Grassley (R-Iowa) and me, as the leaders of the Judiciary Committee, with 46 sensitive FBI witness-interview summaries from the investigation into Hillary Clinton’s email server. Just last year, the department publicly released previously classified material relating to an uncharged subject of the Russia investigation.
Ultimately, if the administration tries to hide the full Mueller report, the president will find himself relying on the courts to quash a congressional subpoena. No one can predict with certainty what the courts will do, but the United States v. Nixon decision makes a strong case for disclosure. Where there is unparalleled public interest in the material; where Congress has a constitutional role in holding the Office of the Presidency to account; and where the alternative could allow for the concealment of misconduct and national security vulnerabilities within the highest levels of our government, I believe Trump, like Nixon before him, would find little refuge in the courts.
The special counsel’s 37 indictments already qualify the 2016 attack on our elections as the greatest scandal since Watergate. If the president has nothing to hide, as he claims, he should support the full release of the special counsel’s report and its underlying evidence. That would go a long way toward turning the page on a dark chapter in U.S. history. Anything short of that will only raise further suspicion.
The truth has a way of coming out in the end. If Nixon taught us anything, it is this: the harder the attempts to conceal the truth, the harder the fall.