The New York Times is reporting that the Mueller report “exceeds 300 pages” in length. That information is attributed to unidentified “American officials with knowledge of” the matter. If “exceeds 300 pages” means something close to 300 pages, it is less than I would have bet on.
Of course, “exceeds 300 pages” could mean lots more than 300 pages. The Times notes that Fox’s Andrew Napolitano has claimed the report is 700 pages long (his basis for saying so is not clear). The paper also reminds us that Ken Starr’s Clinton-Lewinsky report was 445 pages long, last year’s inspector-general report on the Clinton emails investigation was 500 pages, and the 9/11 Commission report was 567.
Meanwhile, Politico reports that Attorney General Bill Barr has told House Judiciary Committee chairman Jerrold Nadler (D., N.Y.) how long the report is. Nadler has not revealed the number of pages; he has just said it is “very substantial.” When asked whether that means fewer than a thousand pages, Nadler replied, “I would think so.” He added that Barr would not commit to the April 2 deadline House Democrats would like to impose.
Of course, page counts can be much ado about nothing. But the Times and the Democrats seem determined to make something out of them, suggesting that, since Attorney General Barr’s letter about Mueller’s report was only four pages (although the Gray Lady allows that these pages were “dense”), this “raises questions about what Barr might have left out.”
Jim Geraghty has an excellent analysis of this claim in today’s Morning Jolt. The argument that a lengthy report implies deception in Barr’s summary seems silly to me. Almost all lengthy reports come with an executive summary that is, at most, just a few pages long. Lengthy books are routinely and representatively reviewed in just a few hundred words. The attorney general did not undertake to summarize Mueller’s full report; the purpose of his letter was to succinctly state Mueller’s principal conclusions. There is no reason to believe that could not be accurately done in four pages.
No good deed goes unpunished. All of us want the report released, the sooner and more completely the better. But that does not mean we are legally entitled to have the report released. Unlike those who argue “this is what I want, so the law must therefore require it,” Barr has to deal with what the law actually says. In the interim, to ensure that we would have something, he read the lengthy report and turned around a letter about the main findings in less than 48 hours.
Barr also pledged to release the report, in as complete a form as is legally and practically possible, in reasonably rapid fashion. The president seems to support (or, at least, not to oppose) release as well. In writing his summary, then, the AG presumably was operating under the assumption that the report would be released — and that the public and the media would compare his summary with the final document. Barr is a savvy guy with a well-earned reputation for being scrupulous. Why would he misrepresent Mueller’s report in this situation?
As for how much of the report will need to be redacted, the grand-jury hurdle to disclosure that Barr cited is real. I was initially surprised that the AG pointed to grand-jury-secrecy rules as the primary restriction that had to be worked through; I expected the AG to rely on the facts that (a) counterintelligence investigations are classified and (b) Justice Department rules discourage public disclosure of investigative information about people who have not been charged with crimes. Yet there was none of that. Barr mentioned only grand-jury rules (as well as the possible need to withhold some information pertinent to ongoing cases, which should not be much of a factor here). My recollection was that getting grand-jury information unsealed was not difficult — the rules allow it to be done by court order.
Alas, the matter is more complicated. As explained in the Congressional Research Service report that Jim discusses, Rule 6(e) (of the Federal Rules of Criminal Procedure) enumerates purposes for which a court may authorize disclosure. These purposes involve judicial proceedings and law-enforcement matters; they do not include disclosure to Congress (which seems odd, since they do contemplate disclosure to foreign courts).
In many jurisdictions (including the Second Circuit, where I did most of my work in my years as a prosecutor), the courts are deemed to have inherent authority to disclose beyond these purposes, or at least to treat the purposes listed in the rule as a guide, rather than a strict limit. As it turns out, however, this is a hot issue in the D.C. Circuit. That tribunal is currently considering McKeever v. Sessions, in which a novelist tried to get grand-jury material for a book he was researching. The Justice Department has opposed this effort, arguing that courts are limited to the textual purposes spelled out in Rule 6(e). (See this article from the Washingtonian, analyzing the possible impact of the case on eventual access to Mueller’s report.)
Plainly, it is difficult for the attorney general to rationalize disclosure outside the 6(e) restrictions if, at the same time, the Justice Department is arguing to the D.C. Circuit that the restrictions are binding. Still, Congress could pass a law (or amend Rule 6(e)) to permit disclosure of grand-jury information to Congress. The House, by a 420–0 margin, has already approved a resolution calling for the report to be made public. Republican leadership has blocked a similar resolution in the Senate, but the majority leader, Mitch McConnell (R., Ky.), has indicated this was to give the Justice Department more time to review the report and make voluntary disclosure. If there is a long delay, Republicans will be under great pressure to approve disclosure legislation; and the president, having said he’s fine with disclosure, will be under pressure to sign it. While Jay Sekulow, one of the president’s lawyers, has suggested that some information might be withheld based on executive privilege, that privilege is constitutional and could be invoked even if a new disclosure law were enacted.
For now, I see this as a tempest in a teapot. The report will be substantially disclosed sooner rather than later. I’m betting we will know then what we should presume now: Attorney General Barr has faithfully described the report’s conclusions.