Don’t expect any major revelations, but do expect redactions.
It is a credit to Attorney General Bill Barr that his testimony yesterday morning before a House Appropriations subcommittee seemed, for the most part, like a nonevent.
Ostensibly, the subject of the hearing was the Justice Department’s $29.2 billion budget request for fiscal year 2020. But because the hearing was the AG’s first appearance on Capitol Hill since his March 24 letter outlining the conclusions of the Mueller report, that topic — specifically, the frenzied anticipation of Barr’s release of a redacted version of the special counsel’s report (said to be 300 to 400 pages in length) — took center stage.
Democrats were loaded for bear, but Barr warded off their jabs, explaining the process by which the report is being reviewed and making some news along the way.
Here are the major takeaways.
The attorney general will release the Mueller report to Congress and the public within the next week. (Note that Congress is scheduled to take its two-week spring break starting Friday).
The internal Justice Department review and redaction of the report continues to be a collaboration between the attorney general and the special counsel, and that process has gone smoothly.
When the report is released, the redactions will be color-coded so that readers will know the rationale for each excision: grand-jury material, classified information, ongoing investigation, or Justice Department privacy policy (apparently to be invoked on behalf of peripheral figures, not the main players). These categories of redaction were addressed in the attorney general’s March 29 letter.
Barr will engage with congressional leaders on the redactions to determine whether there may and should be additional disclosure.
Once again, the attorney general explained that his March 24 letter was merely a synopsis of the special counsel’s bottom-line conclusions (along with an explanation of his own conclusion on the obstruction issue, on which Mueller opted not to make a prosecutorial judgment). Barr did not undertake to “summarize” the Mueller report, and assertions that he provided a misleading summary are unfounded. There will not be a summary of the report; there will be the report — excised as described above.
Special Counsel Mueller was given an opportunity to review the attorney general’s letter outlining the report’s conclusions but declined to do that. (I suspect that is because the report made those conclusions quite clear — and, on the matter of obstruction, made it clear that the special counsel presented evidence on both sides of the question but did not draw a conclusion. Mueller, who has known Barr for decades, had no reason to doubt that the conclusions would be accurately rendered.)
The Justice Department does not intend to seek a court order permitting disclosure of grand-jury material. As I pointed out in a column last Friday, in the D.C. Circuit Court of Appeals, the Justice Department took the position that judges have no authority to disclose outside of the exceptions to grand-jury secrecy laid out in Rule 6(e) (Federal Rules of Criminal Procedure). Last Friday, in McKeever v. Barr, the court agreed with the Justice Department. The Rule 6(e) exceptions do not provide for disclosure to Congress. It would thus make no sense to seek a disclosure order.
The attorney general added that if House Judiciary Committee chairman Jerrold Nadler (D., N.Y.) wants to argue that there is a legal basis for disclosure outside of Rule 6(e), he will hear the chairman out. (As I’ve pointed out, Congress enacted Rule 6(e) and could enact legislation amending it to permit disclosure of grand-jury material to Congress in special-counsel investigations.)
Barr said that Justice Department inspector general Michael Horowitz’s inquiry into aspects of the Trump-Russia investigation (including alleged FISA abuse) will be released by June, and perhaps as early as May.
Importantly, the attorney general also stated that he is looking into the conduct of the Justice Department and the FBI’s Trump-Russia investigation, including what triggered the probe’s initiation.
Barr said that he had not yet seen the criminal referrals that Representative Devin Nunes (R., Calif.), ranking member of the House Intelligence Committee, has said House Republicans would be submitting to the Justice Department this week. These referrals are said to focus on the origination of the Trump-Russia investigation, the use of FISA surveillance, obstructing congressional investigations, and leaking classified information. In his testimony today, the attorney general declined to prejudge the referrals; he indicated that, as a matter of course, the Justice Department will review any congressional referral and, if there is a predicate for an investigation, the matter will be investigated.
In the meantime, we await the Mueller report’s imminent release.