By Jonathan Turley
There was a time when deadlines had a real
bite. The term originated from the Civil War when a line was laid out around
the notorious Andersonville prison camp. If Union prisoners crossed the line,
they were dead.
Thankfully, a deadline is not nearly as lethal
or a literal as it once was. Particularly in
politics. The Democratic leadership in the House of Representatives
garnered a great deal of excitement – and press – over its deadline to Attorney
General Bill Barr to turn over the unredacted Mueller report yesterday . . . or
else. The House Judiciary Committee also demanded Barr’s immediate
appearance as a witness. Barr’s response was a yawn that you would hear all the
way down Constitution Avenue. That fact is that Congress can do
little in forcing such a release and it knows it. Barr has promised
to release a public report within a couple weeks – an impressive feat in
redacting a report hundreds of pages in length for a variety of protected forms
of information. Congress can certainly subpoena the report, as it
has promised today, but such a fight can take months if not years to work its
way through the courts.
The problem in such a challenge is the
Democratic rhetoric has outstripped political reality. After Barr produced his
summary of the conclusions of the Special Counsel, House Speaker Nancy Pelosi
denounced Attorney General Bill Barr’s actions on the Special Counsel Report as
“condescending” and “arrogant.” Others called it all a “cover up.”
The reason for this attack may a bit difficult for those outside of Washington
to understand. Barr submitted a four-page summary of the conclusions of
the Special Counsel to Congress and the public in a remarkably short
time. Within a couple days of receiving the report from Special
Counsel Robert Mueller, Barr publicly released a four-page summary of his
conclusions. Pelosi was outraged by the sheer arrogance of the act
and declared “it wasn’t the right thing to do.” The problem is that
it is precisely what Barr is required to do under the Special Counsel
regulations and, even though the Democrats are loathe to admit it, Barr has
been faster and more open that most critics antificipated.
The Summary
Pelosi was objecting to the fact that Barr
would presume to offer his summary of the conclusions rather than yield to the
demand that the entire unredacted report be released immediately: “I have
said, and I’ll say again, no thank you, Mr. Attorney General, we do not need
your interpretation, show us the report and we can draw our own
conclusions.”
The problem is that Barr is required to share
those conclusions in a summary. The regulations controlling the investigation
stipulate that, after the submission of a confidential Special Counsel report,
the Attorney General will issue “brief notifications, with an outline of the actions and
the reasons for them.” In order words, Barr is being
denounced for being “condescending” and “arrogant” because he is following the
rules that Congress demanded that he follow.
On Friday, Barr himself tried to correct the
widespread misleading statements about the summary. Noting that
House Judiciary Committee Chair Jerry Nadler referred to the notification as a
“four-page summary of the Special Counsel’s review,” Barr stated the obvious
that this was merely the “summary of its ‘principal conclusions’—that is,
its bottom line.” Nevertheless, experts and hosts on CNN and MSNBC
continued to fuel the false narrative that this was a summary of all of the
investigative findings.
Some have even argued that those principal
conclusions may be misrepresented by Barr since a couple days is simply not
enough time to digest hundreds of pages of the report. These attacks
are based on two flawed assumptions. First, they absurdly suggest that
Mueller’s report did not have its own summary of its findings or conclusions. Second,
they suggest that Mueller was not consulted and has remained silent in the face
of a false summary. Neither seems plausible or
likely. Mueller (who has a long friendship with Barr) is working
with Barr on the redactions to the report and has remained active in this
process. Thus, it is not only likely that the summary was an
accurate account but that Mueller was fully briefed on that summary.
The Report
Various Democratic members have insisted that
nothing will suffice unless Barr releases the full and unredacted Special
Counsel report. Indeed, in his confirmation, various Democrats demanded that
Barr promised to release the report even though it was not completed and Barr
had not seen its content. If Barr had made such a promise to secure
his confirmation, he would have been manifestly unqualified for the
position. Various types of information are by law prohibited from
public disclosure including Rule 6(e) information from grand juries –
information that can only be disclosed by court order. There are
also three areas noted correctly by Barr that require redactions: classified
information, statutorily protected privacy information and information related
to ongoing investigations.
There were two notable exceptions involving
the release of investigative reports containing grand jury information but both
cases involved findings of criminal conduct by a president. The Justice
Department released such information as part of the Watergate investigation
detailing criminal conduct by President Richard Nixon. Later, in
1998, Independent Counsel Kenneth Starr’s report was made public with grand
jury information with allegations of criminal conduct by Bill Clintoin,
including lying under oath.
Barr has confirmed that the Mueller
expressly concluded that there was not evidence establishing criminal conduct
linked to collusion by Trump or his campaign. Barr and Deputy Attorney General
Rod Rosenstein concluded that there was not a basis for a criminal obstruction
charge. Accordingly, Barr is proceeding with conventional redactions
before making the report public. Of course, if Congress concludes
that there is a basis for impeachment in the report, it can revisit the issue
and seek a court order for the unsealing of the information.
The Process
Most importantly, Barr has announced that he
does not intend to give President Trump a copy of the report before it is made
public. Barr noted “Although the President would have the right to
assert privilege over certain parts of the report, he has stated publicly that he
intends to defer to me and, accordingly, there are no plans to submit the
report to the White House for a privilege review.”
In
his letter, Barr cited the four areas of possible redaction but did not include
executive privileged information, which would normally be included. He
expressly declared that he had “no plans to submit the report to the White
House for a privilege review.” The waiver of all executive privilege claims in
such a report is as commendable as it is unprecedented. Indeed, for
all of his inappropriate comments on the investigation, Trump has far
outstripped the Obama Administration which routinely refused core oversight
material to Congress. In this case, Trump is waiving all privilege arguments
and will not even been given an advance copy of the public report.
What is particularly impressive about this
decision is that Trump’s legal team has been reserving privilege
claims. Disclosures to Mueller did not constitute waivers since it
was all within the Justice Department but there appears to be a complete waiver
and Trump (and Barr) deserves credit for that decision.
On Friday, Barr again reaffirmed his intention
release the report, stating “Everyone will soon be able to read it on their
own. I do not believe it would be in the public’s interest for me to attempt to
summarize the full report or to release it in serial or piecemeal fashion.”
So to recap. Barr already issued
the required notification without even a reasonable delay. He has
committed to releasing a public report in a matter of weeks – no small feat
with hundreds of pages with statutorily protected information. He is
making all redactions with the assistance of Mueller and has confirmed that
executive privilege claims have been waived.
When I testified at the Barr’s confirmation
hearing, Democratic senators asked what Trump expected in nominating Barr as
Attorney General. I responded that I did not know what Trump thought
he was getting in Bill Barr but I know what he got. Barr could be expected
to do two things. First, he will do exactly what the law demands. Second,
he will do exactly what he promised to do. He promised to get as
much of the Special Counsel report to the public as possible. Thus far, he
is doing exactly that – and in a fraction of the expected time.
