The Justice Department and Democratic lawmakers are bracing for a fight over access to the evidence uncovered by special counsel Robert S. Mueller III during his nearly two-year investigation of Russian interference in the 2016 election and whether President Trump obstructed justice.
A senior Justice Department official said Friday that the report will not be delivered next week, as appeared might be the case just days ago.
The agency’s regulations call for Mueller’s report to be a confidential account of who was charged, as well as who was investigated but not charged. Then, according to the regulations, the attorney general — William P. Barr — will summarize the work for Congress.
Lawmakers already are pressing for the Justice Department to turn over any additional underlying investigative documents produced during Mueller’s investigation.
The task of wresting those materials away from the Justice Department is likely to fall to the House, where Democrats are in the majority. On Friday, House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) joined the chairs of five other House committees in stressing to Barr, “in the strongest possible terms, our expectation that the Department of Justice will release to the public the report Special Counsel Mueller submits to you — without delay and to the maximum extent permitted by law,” according to a letter lawmakers sent to the attorney general.
Democrats said they are watching for how quickly Barr delivers his summary to Congress after he receives Mueller’s findings, warning that any delay could be interpreted as a reason to fear that Barr is covering up certain revelations. Democrats also plan to instruct the Justice Department to preserve all records related to Mueller’s probe, telling Barr in their letter that he should be prepared to furnish information upon request “regarding certain foreign actors and other individuals who may have been the subject of a criminal or counterintelligence investigation” plus other investigative materials, “including classified and law enforcement sensitive information.”
The House committee chairs also asked Barr to detail his reasoning for withholding any sections of Mueller’s report that the attorney general might choose to omit from the summary he submits to Congress.
Justice Department officials have worried that they will have a weak argument for withholding such materials, given how much information was turned over to Congress after the FBI’s investigation into Hillary Clinton’s use of a private email server while she was secretary of state.
When that investigation ended in 2016, then-FBI Director James B. Comey made public the reports of agents’ interviews with witnesses, gave public briefings to Congress and supplied additional information to lawmakers in private meetings.
Justice Department officials who cringed at that level of information-sharing and the disclosure of sensitive investigative documents did much the same after Trump fired Comey in May 2017. When Republican lawmakers demanded additional materials about both the Clinton and Russia probes, the White House squeezed the agency to comply. At one point, in early 2017, then-Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) refused to allow the nomination of Rod J. Rosenstein for deputy attorney general to go forward unless Grassley was provided a detailed briefing from the FBI about the Russia investigation.
Grassley got the briefing.
The trend continued after Rosenstein became the Justice Department’s second-in-command. For instance, when the president declassified a sensitive surveillance warrant, a redacted version of the document was made public. That was unprecedented, and it could affect how the notoriously tight-lipped Mueller deals with future demands for information.
“The rules for what the department turns over to Congress are based almost exclusively on precedent, and now that Republicans have established these new precedents, they’re about to find themselves hoisted on their own petard,” said Matthew Miller, a Justice Department spokesman during the Obama administration. The department, he said, “just has no good argument why it shouldn’t provide the same transparency for the Mueller probe that it did for the Clinton investigation.”
Senior Justice Department officials, however, do not think that the path set by Comey after the Clinton probe is one they should follow when Mueller completes his work. Barr said as much in his confirmation hearing.
“If you’re not going to indict someone, you don’t stand up there and unload negative information about the person,” Barr said during his Senate hearing. “That’s not the way the department does business.”
That raises a challenge for the Justice Department, which has long held the view that a sitting president cannot be indicted.
Miller said the Justice Department must turn over to Congress any incriminating information Mueller found about the president. “The Justice Department has made very clear that it is not the arbiter of presidential criminality — that is Congress’s job,” he added. “If that’s true, that means any evidence of presidential misconduct or potential criminality, they need to turn over to the branch of government they have said polices that conduct.”
If Barr were to resist such requests, lawmakers have a few options in how they respond. They can subpoena everything, from Mueller’s full report to the FBI’s summaries of their witness interviews. They can call Mueller to testify about the substance of his probe and fill in any gaps.
House Judiciary Committee Democrats believe no information from Mueller’s probe should be concealed. But for now, they are shying away from committing to a court fight for every last document, saying they want first to see whether Barr is planning to withhold anything.
They say they expect that Barr will follow the precedent set when special prosecutor Leon Jaworski provided a “road map” to Congress in 1974 of the investigation he pursued against President Richard Nixon. At that point, Democrats think, they should be able to speak with witnesses to whom access was being denied during Mueller’s probe, including former national security adviser Michael Flynn and the former deputy chairman of Trump’s presidential campaign, Rick Gates.
Depending on Mueller’s findings, several Democrats said, ongoing congressional investigations may benefit more from interviewing those witnesses than from waiting while lawyers seek to compel Barr to release Mueller’s notes — especially on the Senate Intelligence Committee, the one panel that has not closed its investigation of Russia’s election interference. That probe began shortly after Trump’s inauguration.
On the House side, Democrats are reluctant to spend much time waiting for a full handing over of Mueller’s documents that may never happen before they forge ahead with their own investigations. There is even some resistance to taking much direction from Mueller if such materials are fully disclosed, as the limits of the special counsel’s probe — it was restricted to looking for criminal activity — do not apply to lawmakers, who can probe any suspected misconduct or potential abuse of power.
What Democrats will be looking for most closely in Mueller’s report, aides said, is any hint he uncovered evidence that could have led to an indictment of Trump. In their letter to Barr on Friday, the House Democratic leaders warned of “the particular danger” of withholding any evidence of misconduct by Trump. “To maintain that a sitting president cannot be indicted, and then to withhold evidence of wrongdoing from Congress because the President will not be charged, is to convert Department policy into the means for a cover-up. The President,” they wrote, “is not above the law.”