Chris Strohm @cstrohm More stories by Chris Strohm
○ Judicial Secrecy RestrictionsIn June 2018, before he was nominated to his current post, Barr wrote an unsolicited memo arguing that the Mueller team shouldn’t have standing to question Trump on obstruction of justice unless it had already established collusion with Russia. Mueller gave Barr and Deputy Attorney General Rod Rosenstein advance warning on March 5 that he wouldn’t make a determination on obstruction. But still, the Justice Department’s quick turnaround on the question—within 48 hours of announcing it had received the report—only adds to congressional Democrats’ distrust.
The day after Barr sent his summary to Congress, six leading House Democrats responded with a letter of their own, which formally requested that Justice begin making the full text of the special counsel’s report, as well as any underlying evidence used to produce it, available to lawmakers no later than April 2. After a short March 27 talk with the attorney general, House Judiciary Committee Chairman Jerrold Nadler told reporters that almost certainly wasn’t going to happen.
“We’re not happy about that, to put it mildly,” he said. Nadler and others, including California Senator Kamala Harris, who’s competing for the Democrats’ 2020 presidential nomination, had called for Barr to testify before the House on his decision-making, which would surely involve questions about what evidence he considered in reaching such a swift conclusion. Nadler said that testimony would happen “reasonably soon,” adding, “we may very well want Mueller after Barr.”
In his summary, Barr said he intended to release “as much of the special counsel’s report as I can,” consistent with Justice Department policies and the Federal Rules of Criminal Procedure, which prohibit disclosing certain materials related to grand jury proceedings. CNN reported that in a closed-door meeting on March 26, House Speaker Nancy Pelosi told Democrats they couldn’t trust Barr’s words alone. “We cannot make a judgment on the basis of an interpretation by a man who was hired for his job because he believes the president is above the law,” she said.
With the total number of ongoing investigations spun off from the special counsel’s probe still unknown, Democrats will have plenty of fodder to question Barr’s judgment on what can and cannot be disclosed. Barr’s testimony before the Judiciary Committee hadn’t been scheduled at press time, but depending on when that occurs, Barr may get a preview on April 9, when he’ll appear at a previously scheduled House Appropriations subcommittee meeting to discuss the Justice Department’s budget requests. This testimony would represent only his second time speaking as Trump’s attorney general and his first appearance before Congress since his Senate confirmation hearings in January.
At those hearings, he gave lawmakers a potential justification for withholding even a redacted report. “If you’re not going to indict someone, then you don’t stand up there and unload negative information about the person,” Barr said. “That’s not the way the Department of Justice does business.”
The comment echoed Rosenstein’s memo criticizing former FBI chief James Comey for his treatment of Hillary Clinton during the investigation into her use of a private email server as secretary of state. That memo was cited in part to justify Trump’s firing of Comey, which led to Mueller’s hiring as special counsel. If Barr sticks to this line, expect House Democrats to respond with subpoenas. —Chris Strohm and Greg Farrell
○ The Executive Privilege ArgumentEarly on in the investigation, the president’s lawyers agreed to cooperate with prosecutors from Mueller’s office—but reserved the right to exercise executive privilege at a later date to prevent certain materials from coming to light. Even as the president, who’s been publicly celebrating the end of the investigation, told reporters at the White House that “it’s up to the attorney general, but it wouldn’t bother me at all” to see the full report released, one of his lawyers, Jay Sekulow, was on CNN saying it would be “very inappropriate” to release Trump’s written answers to the Mueller team’s questions, in part because it could set a bad precedent for other presidents. One duty of the attorney general is to protect the president’s right to keep privileged communications secret, which puts both Barr and Trump in an awkward position.
The concept of executive privilege exists so a president can have sensitive conversations with advisers without fearing their contents will later come out and become politically damaging. Privilege is not absolute, however. In the fight over President Nixon’s Oval Office tapes, which capped off the Watergate crisis, the Supreme Court in the end determined that the public’s interest in hearing them outweighed the president’s assumption of privacy.
Ultimately, the decision to exercise executive privilege doesn’t belong to the attorney general or Trump’s lawyers—it’s the president’s alone to make. Should he choose (or be persuaded) to exercise a sweeping claim to privacy, Democrats are likely to challenge him all the way to the Supreme Court, a process that could take months, if not years, to complete. Meanwhile, any sections of the report covered by that claim could remain out of public view, possibly until after the 2020 presidential election. —Shannon Pettypiece and Chris Strohm
○ Political Calculations“I would hope it would not be necessary to subpoena the attorney general,” Nadler said at a news conference in New York hours after receiving Barr’s letter. Despite his measured tone, it was clear how much of the report he expected to be disclosed—that is, all of it.
On March 14, the House voted 420-0 to adopt a nonbinding resolution declaring not only that the full report be provided to Congress, but also that all but those portions the Justice Department is legally prohibited from disclosing be made available to the public. Nadler confirmed to reporters that the panel intends to “move forward with our investigations of obstruction of justice, abuses of power, corruption—to defend the rule of law, which is our job,” emphasizing that Judiciary has a “broader mandate” than Mueller had as special counsel.
That broader mandate, of course, includes the power to investigate the president for “treason, bribery, or other high crimes and misdemeanors,” impeachable offenses under the Constitution. Nadler has consistently sought to downplay the idea that his committee’s work is building up to impeachment proceedings—but he hasn’t dismissed the possibility, either.
Any move in that direction could be risky for Democrats. At least according to a March 14-17 CNN poll, many in the party’s base—68 percent—wanted to see Congress act to impeach the president and remove him from office no matter what the special counsel’s office found. But that number was down, from 80 percent in December, just before Democrats retook control of the House. Mueller’s findings may have taken still more wind out of those sails. Especially as the administration renews its attacks on the Affordable Care Act, neither Nadler nor Pelosi wants to risk distracting voters from health care and the other issues that helped the party take back the House in the midterms just to settle a score with Trump.
The many Democrats vying for the 2020 presidential nomination all sounded a remarkably similar tone when it came to Trump and the Mueller investigation, demanding the report be made public but stopping short of calling for any action on impeachment. “We want to make sure that we carefully guard and jealously hold these institutions of our democracy and employ this mechanism of impeachment as an absolute last resort,” Beto O’Rourke said in Charleston, S.C. “Ultimately, I believe this will be decided at the ballot box in 2020.”
On March 26, four days after Barr received the Mueller report, a Justice Department official said the attorney general planned to take weeks, not months, to complete his review of the material, which may help Democrats. If they take their eyes off the ball for too long, warned South Bend, Ind., Mayor and presidential contender Pete Buttigieg in a March 22 MSNBC appearance, “then not only is it possible for [Trump] to succeed in 2020, but we could also find ourselves with another figure like him—or even worse—in the future.” —Sahil Kapur and Billy House