Will the Mueller report go public? The courts, not Barr, may ultimately decide

In a letter to House and Senate Judiciary Committee leaders, Attorney General William Barr on Friday announced his receipt of the much-anticipated report from special counsel Robert MuellerRobert (Bob) Swan MuellerSpeier says impeachment inquiry shows 'very strong case of bribery' by Trump Gowdy: I '100 percent' still believe public congressional hearings are 'a circus' Comey: Mueller 'didn't succeed in his mission because there was inadequate transparency' MORE. The report culminates an investigation into “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald TrumpDonald John TrumpFive landmark moments of testimony to Congress Lindsey Graham basks in the impeachment spotlight Democrats sharpen their message on impeachment MORE” (per Mueller’s mandate from Deputy Attorney General Rod RosensteinRod RosensteinDemocrats ask judge to force McGahn to comply with subpoena Democrats ask court to force DOJ's hand on Mueller grand jury materials Washington celebrates diplomacy — and baseball — at Meridian Ball MORE).

The letter itself just announces that Barr has the report. The regulations governing the special counsel investigation do not require that Barr turn it over to anyone — even Congress. For his part, Barr has indicated a willingness to provide a summary of the report’s highlights, but that’s cold comfort for those wanting to know more than just whether Mueller found evidence sufficient to charge and convict individuals with a crime (Mueller has already answered that in the affirmative via dozens of indictments to date).

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What people really want to know is whether Trump is a threat to national security by virtue of his campaign’s many established links to the Russian government — links that were at least somewhat known to the FBI when it launched a counterintelligence investigation in July of 2016, a few months before Trump was elected. (Note that a counterintelligence investigation is a completely different animal than a criminal investigation because it goes to the safety and integrity of the country — not just to whether the facts indicate that particular individuals should face fines and/or go to jail for bad acts.)

Understandably, congressional Democrats have declared a willingness, in the words of Rep. Sean Patrick Maloney (D-N.Y.), to “subpoena the report, ask Mr. Mueller to testify, and take it all to court if necessary.” And the federal courts may well decide the fate of the Mueller report. 

Arguably, that’s as it should be. 

Unlike for the Clinton-era Whitewater investigation led by independent counsel Kenneth Starr, no act of Congress requires the release of the Mueller report. Starr’s statute expired. To be sure, Congress retains the option of passing new legislation, but that’s unlikely to get through the Republican-controlled Senate, let alone overcome a potential presidential veto. 

So, it will come down to a subpoena. And on that subject, people want to know: Could Congress issue a subpoena to Barr for the Mueller report or maybe even his testimony? To Mueller? To the Department of Justice? The answer is: Sure, it can. But it’s the wrong question.

The right question is not whether Congress can subpoena the Mueller report but, rather, whether Congress can force the executive branch to comply with such a subpoena. Recall that President Nixon faced a similar question regarding a DOJ trial subpoena seeking the release of audio recordings of what turned out to be incriminating conversations between the president and administration officials. Nixon balked, and the matter went to court. In a unanimous decision, the U.S. Supreme Court upheld the subpoena, rejecting the president’s claims of executive privilege.

Nixon complied with that judicial decision, released the tapes, and the rest — including the resulting collapse of his presidency — is history. Notably, the House of Representatives drafted articles of impeachment that listed Nixon’s defiance of “duly authorized subpoenas issued by the Committee on the Judiciary” as one reason why he should not remain in office in 1974.

Fast-forward to 2019. Of course, Congress can subpoena the Mueller report. But it’s unclear at this point whether Barr would authorize DOJ to comply. Barr answers to Trump, who might not want it public (despite his nonchalance thus far). And there are serious legal impediments to disclosure — including the confidentiality of grand jury materials under Rule 6(e) of the Federal Rules of Criminal Procedure, laws protecting national security and intelligence information, privacy laws and, among other things, executive privilege. Executive privilege does not confer blanket immunity on all-things-presidential, but can be a formidable barrier to public disclosure.

To be sure, the special counsel regulations provide that “the Attorney General may determine that public release of these reports would be in the public interest.” That means Barr can release the Mueller report if he wants to. But not necessarily. In what appears to be a possible drafting error, the “public interest” language is not in the section of the regulations expressly governing the Mueller report. Barr has the discretion to apply the regulations more broadly to justify the report’s release, but there’s a legitimate legal argument that he should keep it confidential unless a court orders him to do otherwise.

In our three-branch system of government, each branch is positioned to check the powers of the other two. When Trump critics decry that “no one is above the law” in the United States, that’s what they’re referring to — the structural system of checks and balances. Both the president and the attorney general are part of a single branch: the executive. To allow an unelected Trump appointee to decide (along with the deputy attorney general, another unelected Trump appointee) whether their boss should be hung out to dry politically for the good of the broader populace is structurally unsound.

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Indeed, this is precisely how we wound up stuck with DOJ’s misguided constitutional stance against indicting a sitting president — Nixon’s DOJ whipped up that policy when his presidency was in hot water. Bill ClintonWilliam (Bill) Jefferson ClintonPennsylvania's other election-night story Democrats debate how to defeat Trump: fight or heal As impeachment goes public, forget 'conventional wisdom' MORE’s DOJ reached the same conclusion in the wake of the Whitewater investigation. It’s not a surprise that lawyers acting as the “judge” in a dispute against their client will be biased in favor of the personal interests of that client — here, the then-sitting presidents of the United States. 

It’s a classic conflict of interest, folks. And it’s a structural problem for the American presidency — one that’s not going away unless, and until, the Supreme Court resolves it in a subpoena fight.

Kim Wehle is a former assistant U.S. attorney, a former associate independent counsel in the Whitewater investigation. Wehle is a professor at the University of Baltimore School of Law, a CBS legal analyst and a contributor to the BBC. Her forthcoming book, “How to Read the Constitution — and Why,” will be published in June. Follow her on Twitter @kim_wehle.