The Washington PostDemocracy Dies in Darkness

As debate over Mueller report rages, Rosenstein says Justice Dept. should not release info on uncharged suspects

Deputy Attorney General Rod J. Rosenstein on Feb. 25 suggested absolute transparency in Justice Department investigations could be “misleading." (Video: C-SPAN)
Placeholder while article actions load

Deputy Attorney General Rod J. Rosenstein said Monday that he believes the Justice Department should not reveal information about people it does not charge with crimes — an ominous sign for those hoping the department will soon disclose the closely held details of special counsel Robert S. Mueller III’s probe of President Trump and his campaign.

Speaking at an event about the rule of law at the Center for Strategic and International Studies in Washington, Rosenstein said, “The guidance I always gave my prosecutors and the agents that I worked with during my tenure on the front lines of law enforcement were if we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens.”

Though he asserted his comments were not about any particular case, he noted the issue was one “that we’ll be discussing nationally.”

For days, lawmakers and pundits in Washington have debated what should become public about Mueller’s probe once it ends. On Sunday, House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) said Democrats plan to subpoena Mueller’s report and will go to court if necessary. Responding to Rosenstein’s comments Monday, Schiff said: “This double standard won’t cut it. For two years, I sounded the alarm about DOJ’s deviation from just that principle as it turned over hundreds of thousands of pages in closed or ongoing investigations. I warned that DOJ would need to live by this precedent. And it will.”

Rosenstein conceded there “may be legitimate reasons for making exceptions,” but he felt the Justice Department generally should be sensitive “to the rights of uncharged people.”

“There’s a knee-jerk reaction to suggest that we should be transparent about what we do in government, but there are a lot of reasons not to be transparent about what we do in government,” Rosenstein said. “Just because the government collects information doesn’t mean that information is accurate, and it can be really misleading if you’re overly transparent about information that the government collects, so I think we do need to be really cautious about that.”

The comments seem to foreshadow what could be a grueling legal battle between Congress and the Justice Department over what information about Mueller’s work ultimately is released.

The regulations that govern Mueller’s work require him to submit to the attorney general a confidential report detailing whom he charged — as well as who was investigated and not charged. The attorney general is then to notify Congress that Mueller’s investigation has ended. The regulations do not require the attorney general or Mueller to make significant details public, although they do not prohibit officials from doing so.

Lawmakers already are pressing for significant investigative documents to be handed over, and recent precedent might work to their benefit. After the FBI concluded its investigation into Hillary Clinton’s use of a private email server while she was secretary of state, then-FBI Director James B. Comey made public the reports of agents’ interviews with witnesses and gave public briefings to Congress. Clinton was not charged with a crime.

Comey was widely criticized for that — including by Rosenstein, who wrote a memo that supported Comey’s firing because of how he handled the Clinton case.

Access to Mueller’s report and evidence may be guided by Congress, Clinton email case

The decision on how much to release about Mueller’s probe will ultimately fall to Attorney General William P. Barr, who vowed at his confirmation hearing to be as transparent as possible but notably declined to promise he would release Mueller’s report. Rosenstein’s view, though, is important, since he appointed Mueller as special counsel in May 2017 and supervised much of his investigation. Rosenstein remains the No. 2 Justice Department official, although he expects to leave in mid-March. Trump has said he plans to nominate lawyer Jeffrey Rosen to replace him.

At the event Monday, Rosenstein said he believes Americans will look back on this period in the Justice Department’s history with pride, and he notably singled out Trump as warranting recognition for that.

“The president will deserve credit for the folks he appointed to run the department,” Rosenstein said.