With everyone waiting for the expected news of the submission of the report of Special Counsel Robert Mueller, there remains a remarkably unresolved question of what Attorney General Bill Barr can actually give to Congress. I have previously discussed how giving the report to Congress would require the redaction of a host of information under privacy, classification, and executive privilege rules. However, the threshold question is what the statute contemplates. The answer is: not much.
Under the regulations for the Special Counsel, Mueller is required to give Barr a confidential report. Barr is expected to then inform Congress of that submission in a brief letter. He may at that time give a time frame for sending a summary to the Congress.
A summary however is not quite what many in Congress – in both parties – are demanding. The regulations however state that the report to Congress should be “brief notifications, with an outline of the actions and the reasons for them.”
So can Barr actually send a redacted version of the Mueller Report. I think that he can but not as his summary under the law. The Executive Branch has the authority to waive privileges and other restrictions over executive material. I do not believe that the regulations bar the release of the Special Counsel report in stating what is required in terms of a report. What is required is not a limit on what is permitted.
Clearly Barr could balk at the release of a redacted report by pointing out that both Democrats and Republicans attacked former FBI Director James Comey for his extemporaneous public comments on the conduct of Hillary Clinton after rejecting criminal charges. However, this is a bit different. A Special Counsel investigation has a more robust reporting requirements and the regulations themselves acknowledge the mandatory reporting duty is “to help ensure congressional and public confidence in the integrity of the process.”
Moreover, that language comes in the “discussion” portion of the regulations. The prior section states:
“The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.’’
That seems an expression acknowledgment that “other releases” are permitted and not prohibited.
President Donald Trump has already stated that the report should be public – a statement that would seem to waive executive privilege objections to its release. Barr could submit the report to Congress under that mandate. He could also hand over the report at the request of Congress or due to a subpoena. He could expressly state that he is not waiving privilege arguments for the future but turning over the information in light of Trump’s direction.
Thus, the Barr summary will not – and cannot – be the report itself. However, if President Donald Trump continues to maintain that the Report should be made available to the public, he (and Barr) have the power to guarantee that it is made available.