Published March 29, 2019
Democrats demanding the release of special counsel Robert S. Mueller III’s complete and unredacted report on his investigation into Russian interference in the 2016 presidential election should pipe down, at least if they want to preserve a reputation for consistency. They spent over two years reminding us how important the rule of law is. They, more than anyone, should know that the law does not permit Attorney General William P. Barr to give them what they desire.
Two sets of laws and regulations govern what the attorney general can release. The first concern how any special counsel’s report should be handled. The second are those Barr cited in his summary, longstanding rules designed to protect law enforcement investigations and ongoing prosecutions.
The first set plainly envisions disclosing less rather than more of any special counsel’s investigation. The governing law and accompanying regulations were written in the aftermath of special counsel Kenneth Starr’s public release of his explosive and salacious report into a variety of allegations against President Bill Clinton. As Harvard law professor Jack Goldsmith explained at the Lawfare blog, the regulations were drafted specifically to limit public discussion of the special counsel’s investigation, and thus to provide fewer incentives for independent counsels to overstep. They were intended to make a special counsel’s investigation more like a normal criminal investigation whose conclusion is rarely, if ever, made public.
The attorney general has complied with all of the requirements of these regulations. Unless Democrats want to argue otherwise, they have no legal standing to demand he provide more information than he already has. And given the benefit of experience, Democrats might consider whether they really want to set a new precedent that encourages special counsels to be invasive and publicity-seeking.
Barr has nevertheless stated he will go further than legally required and release more information once the department reviews the document to ensure the version that is ultimately released complies with the second set of laws and regulations. In his statement, Barr specifically noted the value of these provisions, which are designed to ensure that ongoing prosecutions were not compromised and that grand jury investigations remained secret.
No one suggests those are inappropriate concerns or that Barr is improperly invoking them in regards to the report. Once again, Democrats might contemplate whether they would rather see Mueller’s full, unredacted report or whether they would prefer that the prosecutions he initiated proceed as planned, without the additional wildcard of the unredacted report thrown into the mix.
The review required to ensure the law is followed will take time. Each piece of information must be sourced and researched to see if it was either unearthed or considered by a grand jury or could be used in regards to an ongoing prosecution. One may be suspicious of unreasonable delay. But since we know from comments by House Judiciary Committee Chairman Jerrold Nadler (D-N.Y.) that the report is at least 300 pages long, we are currently well within any reasonable person’s time frame for an appropriate review.
Some Democrats will presumably be unhappy with whatever they receive, as parts of the report will clearly remain secret. They might also be unhappy with the form of any release, especially if it is a separate document rather than the original report with sections redacted. But then they have forums for recourse, including federal court and their own investigative powers. The attorney general has already said he will comply with a congressional subpoena to testify on this matter.
It wasn’t that long ago when upholding the rule of law was the stated goal of Democrats and others inexorably opposed to the president. The president was not supposed to fire then-Attorney General Jeff Sessions or Deputy Attorney General Rod J. Rosenstein even though he plainly had the constitutional right to do so because that would violate the rule of law. He was not supposed to fire the special counsel himself for the same reason. That argument was sound because even though Trump might have had the right to do these things, the underlying principle of the rule of law – that the law applies to all, even the rulers – would have been compromised if he had.
That underlying principle now applies to another set of rulers: Democrats in the House. What’s good for the goose is good for the gander. Democrats should stop demanding what they have no legal right to, and instead focus on what they have said they supported all along: protecting the rule of law.
Henry Olsen is a Washington Post columnist and a senior fellow at the Ethics and Public Policy Center.