Justice John Paul Stevens's fiercely modest judicial method
The American people must see the Mueller report with few redactions
More than three weeks ago, special counsel Robert Mueller delivered a report on Russian interference in the 2016 presidential election to Attorney General William Barr. On Thursday, Barr will send a highly anticipated redacted version of the report to Congress and make it available to the American people. Barr intends to redact four types of material from the Mueller report. First are "matters occurring before the grand jury," known as Rule 6(e) material, second is classified material, the disclosure of which would threaten national security, third are matters that could affect ongoing criminal investigations, and fourth is material that would infringe on the privacy interests of "peripheral third parties."
While there may be some materials for which disclosure would be inappropriate, there are compelling public interests that demand the fullest possible disclosure of the Mueller report. Indeed, Barr should submit the final report without any redactions to Congress. Disclosure is vital to a functioning democracy, which requires the government to make information available to the public to ensure that federal actions are transparent. One of the framers of the Constitution, James Madison, stated that information access for citizens is a cornerstone of democratic governance. Madison wrote, "A popular government without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both. Knowledge will forever govern ignorance."
Commenting on the Watergate scandal, Supreme Court Chief Justice Earl Warren stated, "If anything is to be learned from our present difficulties, compendiously known as Watergate, it is that we must open our public affairs to public scrutiny on every level of government." Thus, redacting substantial portions of the Mueller report will undermine government transparency and the ability of citizens to discern for themselves whether President Trump and members of his campaign engaged in criminal wrongdoing and unethical behavior in their contacts with the Russians.
There should be a strong presumption in favor of full disclosure of the Mueller report. Only the most compelling reasons justify withholding information from the American people about the Russia investigation. Of course, it would be inappropriate to disclose any classified information. However, what constitutes a "matter occurring before the grand jury" under Rule 6(e) should be narrowly construed in favor of disclosure. The purpose of Rule 6(e) is to preserve secrecy, but a federal court has found, "There must come a time, however, when information is sufficiently widely known that it has lost its character as Rule 6(e) material." This is critical.
A high bar should be set for withholding material that could affect ongoing criminal investigations. Such information should be withheld from the American people only if disclosure would jeopardize, not merely affect, ongoing investigations. Privacy concerns should be balanced against the public interest. The American people have a compelling interest in knowing that the Russia investigation was comprehensive and that the report is fair and accurate. There is great interest in possible malfeasance by President Trump, including obstruction of justice.
Redacting the Mueller report also interferes with the oversight duties of Congress. Our founders established a democracy based on the separation of powers. This framework of government ensures that no person is able to gain absolute power and stand above the law. Indeed, Congress serves as a critical check and balance on abuses of power by the president.
The reasons for not disclosing certain information to the public simply do not apply to Congress. Lawmakers have security clearance and regularly receive classified information, so there is no justification for withholding information for national security reasons. Further, the full disclosure of the Mueller report to Congress will not jeopardize ongoing investigations. The necessity for lawmakers to have such information in order to carry out oversight responsibilities substantially outweighs any privacy concerns.
Finally, Barr should apply to the district court for an order seeking the release of grand jury material to Congress. Indeed, there is ample legal authority that the release of grand jury material is "committed to the discretion of the trial court." While a recent circuit court decision did prohibit the disclosure of grand jury material to a private individual for a book he was researching, no federal court has ever held that Rule 6(e) specifically prohibits the disclosure of grand jury material to Congress.
The final report of the independent counsel in the Iran Contra matter was released to Congress and the public with minor redactions. The public interest was served by its disclosure. The release of the Mueller report is equally in the public interest. Thus, Barr should release the full report to Congress and disclose it to the American people with minimal redactions.
Jimmy Gurule is a law professor at the University of Notre Dame. He is a former undersecretary of enforcement at the Treasury Department and former assistant attorney general of programs at the Justice Department.