The Corner

Law & the Courts

Chairman Nadler’s Cynical Argument

Representative Jerry Nadler (D, N.Y.) arrives for a House Democratic Caucus meeting on Capitol Hill in Washington, D.C., November 28, 2018. (Joshua Roberts/Reuters)

Today in the New York Times, House Judiciary Chairman Jerrold Nadler writes an op-ed demanding the full release of the entire Mueller report by tomorrow. He never quite gets around to mentioning what’s holding up the release of the Mueller report, which is the need to remove information related to grand jury deliberations or other ongoing investigations that have been referred to other offices.

As noted in one of last week’s Morning Jolts, there are good reasons why prosecutors generally don’t release grand jury information. In his letter to Congress, Attorney General William Barr specifically cited Federal Rule of Criminal Procedure 6(e), which provides that government attorneys and the jurors themselves, among others, “must not disclose a matter occurring before the grand jury.” Barr didn’t make this rule up, it’s not obscure or optional, and Nadler knows darn well about its importance. Barr stated in a letter to Nadler and the judiciary committee that the special counsel’s office is assisting in identifying portions that are grand-jury testimony or relate to ongoing investigations or prosecutions.

But because the Democrats prefer a narrative of a sinister cover-up, Nadler just averts his eyes and pretends the rules on grand jury testimony don’t exist.

Late last week we heard that Mueller’s report is more than 300 pages. Barr thinks he’ll have the redactions finished by the middle of this month. Maybe that strikes you as too much time, or too little time, or maybe it seems just right. But if Barr had done as Nadler seems to want, and skipped the redaction process entirely, he would be violating federal law and perhaps lousing up other investigations and prosecutions of other federal law enforcement offices. (No doubt some House Democrats would probably want Barr removed from office for recklessly releasing grand-jury information.) The guys who claim to be standing for the rule of law are demanding that the law be violated.

Separately, Nadler asks, “[Barr] declined to charge the president with obstruction in part because there was no underlying crime to obstruct. Did he discuss that conclusion with Deputy Attorney General Rod Rosenstein — who, while a federal prosecutor, routinely charged individuals with obstruction without charging the underlying crime?”

Right in Barr’s letter, it says:

After reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

Nadler closes his op-ed with a perfectly cynical statement that “if President Trump’s behavior wasn’t criminal, then perhaps it should have been.” Nadler is demanding the immediate release of the report . . . and he’s already decided what he concludes from its findings.

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