Mueller’s report: Release enough, but not too much

Mueller’s report: Release enough, but not too much
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The Senate Judiciary Committee did its best last week to pin down attorney general nominee William Barr on a central concern: Exactly how much of the report by special counsel Robert MuellerRobert Swan MuellerSasse: US should applaud choice of Mueller to lead Russia probe MORE would Barr release, if he is confirmed to head the Department of Justice?

Mr. Barr made reference to well-settled departmental policies but rather scrupulously avoided predicting how much those policies or regulations would yield by way of public disclosure.

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I can tell you that those, including I, who authored some of the foundational departmental regulations in 1988 (which, a decade later, would replace the statutory independent counsel law that Congress allowed to expire in 1999) had as one of our purposes to constrain the kind of prosecutorial reporting in which former FBI director James ComeyJames Brien ComeyFBI’s top lawyer believed Hillary Clinton should face charges, but was talked out of it Dems seize on Times bombshell to push allegations of Trump obstruction Trump calls Andrew McCabe a 'poor man's J. Edgar Hoover' MORE engaged with regard to Democratic presidential candidate Hillary ClintonHillary Diane Rodham ClintonFBI’s top lawyer believed Hillary Clinton should face charges, but was talked out of it Harris adds key Clinton aide, women of color to 2020 campaign: report Democrats more likely Trump's foil, than to foil Trump MORE.

In particular, it was the intent of the regulatory drafters that any special prosecutor would speak only through indictment and the charges brought, with any further elaboration of fact coming largely through the evidence introduced at trial.

Both Democratic and Republican presidents (and their attorneys general) had grown exasperated with the statutory independent counsel structure. While nominally aimed at reducing the supposed conflict of interest that arises whenever a subordinate is tasked with investigating the president or other high official, the law in operation was more political weapon than guarantor of prosecutorial fairness.

As the late Justice Antonin Scalia observed, in casting perhaps his most famous dissenting vote against the law’s constitutionality: “Nothing is so politically effective as the ability to charge that one’s opponent and his associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And nothing so effectively gives an appearance of validity to such charges as a Justice Department investigation and, even better, prosecution.” 

But particularly galling was the foul practice of dropping the case while suggesting the person could have been prosecuted nevertheless. As I noted in my book, “The Attorney General’s Lawyer,” President Jimmy Carter’s attorney general, Benjamin Civiletti, put it bluntly and correctly. “(A) regular prosecutor has one function: put up or shut up,” he stated. “They investigate and they charge, or they do not charge … . They don’t go about damaging a person’s reputation without giving him a forum to clear his name.”

The same point was made unequivocally in the Watergate special prosecutor’s final report, which stated that “it would be irresponsible and unethical for a prosecutor to issue a report suggesting criminal conduct on the part of any individual who has no effective means of challenging the allegations against him or of requiring the prosecutor to establish such charges beyond a reasonable doubt.”

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The above allows greater understanding for the frustration that President TrumpDonald John TrumpJustice Department preparing for Mueller report as soon as next week: reports Smollett lawyers declare 'Empire' star innocent Pelosi asks members to support resolution against emergency declaration MORE has expressed with regard to James Comey. Director Comey was not an independent or special counsel. His job was solely to investigate and to report internally to the attorney general the findings of his investigation so that the attorney general — not Mr. Comey — could determine if there was proof beyond a reasonable doubt that those under investigation had committed a crime.

Just as Mr. Comey misconceived himself to be the attorney general, or even more some kind of freelance investigator-prosecutor answering only to his personal conscience, it is likewise a misconception to view special prosecutor Mueller as a type of uber-investigator working on behalf of congressional committees. Mueller’s job is to find evidence of criminal conduct and to report it to the attorney general. Mueller’s duty is not to advise whether the evidence found is a sufficient “high crime or misdemeanor” for which a sitting president might be impeached, but to inform the attorney general of probable crimes. It is then the attorney general’s responsibility, subject to the principles of executive privilege, to share with the House and the Senate such evidence that may influence its determination of whether or not to pursue removal.

Executive privilege is the means by which presidents preserve their ability to receive candid advice, protect the names of informants and other sources or methods of investigation, and, most of all, to protect national security. I would expect Bill Barr as attorney general to apply the constitutional doctrine of executive privilege with meticulous care. In doing so, it would appear that the national-security interest is the factor most likely to push against sweeping disclosure of Mueller’s report. Despite the passage of time since the 2016 election, the subject matter of the Mueller report — a foreign government trying to subvert our electoral process — remains without remedy and an open national-security concern. Obviously, this consideration looms even larger if the special counsel has evidence of candidate Trump or his campaign interacting with foreign sources of influence.

The next attorney general has a very difficult line to walk. On the one hand, enough of the prosecutorial work product must be released to allow Congress and the people to fairly consider whether or not the president deserves removal. At the same time, the attorney general must keep in mind that the president would not be criminally prosecuted until he is no longer a sitting president. Hence, the attorney general cannot release too little, which would obstruct the impeachment inquiry, but must not release too much either, thereby putting in jeopardy the criminal prosecution that would follow an impeachment.

Remember: Removal first, criminal prosecution second, is the prescribed order of operations that is reflected in the longstanding Office of Legal Counsel view that a sitting president cannot be indicted. He will be held to account but, constitutionally, a president must leave or be removed from office before criminal prosecution. The Constitution’s structure and history rightly finds that a president under indictment cannot perform his anticipated function “to take care that the laws are faithfully executed.” Indeed, indictment makes the president the very antithesis of his position.

There is one overriding consideration that Mr. Barr, if he is confirmed as attorney general, is duty-bound to observe — that executive privilege is a constitutional protection for the common good. It is not a privilege that runs to the individual, like the privilege against self-incrimination. Every attorney general has recognized that executive privilege should never be permitted to hide criminal wrongdoing and thus subvert the rule of law itself. It is of considerable importance that William Barr, as attorney general, be no different.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law.