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.
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.
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.
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.