Tuesday, April 9, 2019

Last Call For It's Mueller Time, Con't

Special counsel Robert Mueller’s report will be released “within a week,” Attorney General Bill Barr promised Tuesday at a House Appropriations subcommittee hearing.

“Within a week, I will be in position to release the report to the public,” Barr testified.

“This process is going along very well,” Barr said, adding that the “original timetable of being able to release this by mid-April stands.”

The Attorney General said his office was working with Mueller’s team to identify information that falls under four categories Barr previously said would need to be redacted. Those include matters related to ongoing investigations, information that would damage innocent third-party individuals, secret grand jury materials, and classified intelligence.

Barr said that that information would be color-coded and that his office would provide “explanatory notes for each redaction” in the report that goes to Congress.

Chairman Jose Serrano (D-NY) asked if the report would include the potential instances of obstruction of justice that Mueller investigated but had not yet been publicly reported.

“As things stand now, I don’t think that they will be redacted so they will be identifiable,” Barr replied.

It is this color-coded version that will be handed over to Congress, and, Barr said, hopefully made “available to the public.” House Judiciary Committee Chairman Jerry Nadler (D-NY) is among the Democratic leaders saying nothing less than the full, unredacted report is acceptable.

Barr said the redacted version was a “first pass.”

Expect massive redactions in the report that Barr will control completely in order to minimize the damage to Donald Trump.

Attorney General Bill Barr has no plan to try to seek the public release of secret grand jury materials included in special counsel Robert Mueller’s report.

“My intention is not to ask for it at this stage,” Barr testified Tuesday before the House Appropriations subcommittee.

Democrats on the committee asked if Barr intended to seek a court order to make those materials public, as House Judiciary Chairman Jerry Nadler (D-NY) has pressed him to do. He offered only to listen to Nadler’s case on why that would be necessary.

The attorney general also testified that he had grand jury material in mind when he made the decision to write a March 24 letter offering what he claimed were Mueller’s “principal conclusions.” He confirmed that he declined to use the multiple report summaries that Mueller’s team had reportedly already prepared. Every page of the report Barr received from the special counsel’s office was marked by the indication that it may contain secret grand jury material, he testified.

Barr said he took the restriction barring the release of grand jury material seriously, citing a D.C. Circuit Court of Appeals ruling last week affirming that there were only five exemptions that would allow a court to release grand jury materials.

Barr struck a somewhat defensive tone in explaining his letters to Congress characterizing the report. He repeatedly insisted that he tried to use “as much of the special counsel’s own language” as possible without revealing any classified grand jury information.

Rep. Charlie Crist (D-FL) asked about press reports that members of Mueller’s team were frustrated that Barr did not accurately describe their extensive, serious findings about President Trump’s obstruction of justice.

“I suspect that they probably wanted more put out,” Barr replied. “But in my view I was not interested in putting out summaries or trying to summarize because I think any summary regardless of who prepares it not only runs the risk of, you know, being under-inclusive or over-inclusive but also would trigger a lot of discussion and analysis that really should await everything coming out at once.

The theory is that Democrats in Congress will only see the full, unredacted Mueller report if they impeach Donald Trump and subpoena the report as evidence.

One of the exceptions to grand jury secrecy is disclosure “preliminary to or in connection with a judicial proceeding.” To authorize disclosure of the Watergate grand jury information, the special prosecutor’s office argued that the House had authorized its Judiciary Committee to conduct a formal impeachment inquiry and that such an inquiry could be fairly analogized to a “grand jury” investigation and thus a judicial proceeding. Both the district court and the court of appeals agreed, and the Judiciary Committee obtained both the report and the underlying evidence.

Significantly, the appeals court decision several days ago reaffirmed that exception. All three judges agreed that an impeachment inquiry falls within the “exception for judicial proceedings” and “coheres” with other rulings about the proper scope of grand jury secrecy.

But Pelosi has declined to allow the Judiciary Committee to open even a preliminary impeachment inquiry, asserting rather bizarrely that Trump is “not worth it.” That decision may hamstring Nadler’s quest for the complete Mueller report. Nothing in the federal rules creates an explicit exception allowing congressional committees exercising general powers of government “oversight” to demand access to secret grand jury material. So, Pelosi and Nadler are confronting a dilemma of their own making: either revisit the politically fraught impeachment question or concede that the House is at the mercy of whatever judgment the attorney general makes in excising grand jury information, which may include the most salient material about possible collusion and obstruction of justice.

For his part, Barr also has delicate judgments to make. If he is so inclined, the attorney general could properly opt to exclude only the names and actual testimony of grand jury witnesses while nevertheless informing the Judiciary Committee — and the public — about the substance of the information developed during the proceedings. Unfortunately, Barr has given every indication that he intends to make needlessly sweeping redactions, especially having ruled that, in his judgment, the evidence of obstruction of justice did not rise to the level of a prosecutable crime. Trump’s selection of his new attorney general may prove to be his best line of defense — unless Pelosi revisits her stance and directs the House Judiciary Committee to include impeachment within its investigatory ambit.

Whatever the decision, expect the fight over the Mueller report to drag on for months, if not years.

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