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Breaking News Alert This Week In Lawfare Land: 'Deadly Force'

Adam Schiff Sets Up The Eventual Battle Over Whether The Mueller Report Will Be Publicly Released


When Special Counsel Robert Mueller submits his final report to Attorney General William Barr, Barr will have the choice of whether to release the report, or portions thereof, to the public. Rep. Adam Schiff, a Democrat from California, has already threatened that he would subpoena Mueller and seek redress from the courts should Barr fail to release the report. While Schiff is free to pursue whatever legal recourse he chooses, the fact remains that the ultimate decision belongs to Barr and that it is premature to demand disclosure until the report is complete.

In the past, the Independent Counsel Act required the special counsel to report to the House of Representatives “substantial and credible information” of impeachable conduct. However, this law has expired. Currently, the relevant regulation states that “’at the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report’ explaining the decision to either prosecute or not.” Furthermore, according to Fox News, “the attorney general may release the report if he or she determines doing so is ‘in the public interest.’ However, such release must ‘comply with applicable legal restrictions.'”

The purpose of this regulation was to give the Department of Justice more control over the special counsel and any investigations and to restore the separation of power between the executive branch and Congress. Under the previous law, there were many investigations, which resulted in significant expensive and oppressive prosecutorial tactics. As set forth in The Conversation, “’Presidents of both parties had suffered through scandals and prosecutions under the Independent Counsel Act…There was a chance to rethink things without either party fearing that it would give its political adversaries an advantage.’”

Grand Juries Often Don’t Disclose Records

Another barrier to the release of Mueller’s report involves the fact that much of the information was derived by way of a grand jury. Federal Rule of Criminal Procedure 6(e) prohibits public release of documents and testimony presented to the grand jury. There are a few exceptions to this rule, some of which are discussed here and here. However, the general rule is that such information is not disclosed so as to protect the secrecy of the grand jury proceedings, prevent those who are being investigated from leaving the area (fleeing), ensuring full cooperation from witnesses, and protecting those who are innocent from unnecessary and unjustified prosecution.

The courts are split about the release of grand jury records. Recently, a federal appeals court in Atlanta affirmed the rights of federal judges to release grand jury records based, in part, on a 1984 ruling from the same federal appeals court holding that federal judges have “inherent authority” to release the records because they pertained to an issue that was “historically significant.” Other courts have issued have taken different positions on this issue. As set forth in Politico,

Several other circuits, including the New York-based 2nd Circuit and the Chicago-based 7th Circuit, have upheld judges’ right to release grand jury material sought by historians or in other circumstances not mentioned in the rule.

However, the St. Louis-based 8th Circuit indicated in a 2009 case stemming from independent counsel Ken Starr’s Whitewater investigation that courts don’t have authority beyond that specifically laid out in the rule.

The D.C. Circuit is currently mulling a request for disclosure of grand jury records about the investigation into the 1956 disappearance of a Columbia University lecturer who was critical of the government of the Dominican Republic at the time. When the case was argued in September, at least one judge seemed to view it as unwise for the courts to make disclosures untethered to any formal authority.

What’s In the Public Interest?

Given the dichotomy of opinions among the various courts and the significance of this issue (especially in light of the upcoming Mueller report), the Supreme Court could ultimately be asked to decide this issue. For example, if Mueller’s report includes information that is politically damaging to President Trump, yet not criminal in nature, may Barr release the report because it is in the public interest to do so given the high-profile nature of the investigation? Is he compelled to do so?

Furthermore, if Congress subpoenas Mueller to testify, may he disclose information derived from the grand jury investigation or disclose the contents of the report? These are some of the questions that the Supreme Court will likely address soon, especially in light of Schiff’s recent threat to subpoena Mueller.

Additionally, congressional Democrats have long expressed their desire to impeach President Trump. According to a 2019 report prepared by the Congressional Research Service, while grand jury information is normally secretive in nature, two exceptions could possibly help Congress, including “ (1) the exception that allows a court to authorize disclosure of grand jury matters “preliminarily to or in connection with a judicial proceeding,” and (2) the exception, recognized by a few courts, that allows a court to authorize disclosure of grand jury matters in special or exceptional circumstances.

Some courts have found that one or both of these exceptions is triggered when Congress requests grand jury materials in the context of impeachment proceedings. Therefore, this is another avenue that is worth noting.

Clearly, if Mueller’s report includes a decision or recommendation to prosecute, Barr will likely release the report in accordance with all legal guidelines and restrictions. If it doesn’t, however, there will likely be one or more legal battles relating to the report and the circumstances under which it can be released to Congress and the public.