The Coming Transparency Battle Over the Mueller Report
The battle over the Mueller report will pit national security, executive privilege, and privacy against the public interest in the Russia investigation.
Last Friday, special counsel Robert Mueller delivered his long-awaited report on Russian interference in the 2016 election, possible coordination between Russia and the Trump campaign, and whether President Trump obstructed the investigation. But it remains very unclear how much the public will actually get to read of the most anticipated political document in recent history.
Attorney General William P. Barr and Justice Department staff will have the task of reviewing the Mueller report to determine how much of it contains classified information, grand jury materials, sensitive law enforcement records, and other portions shielded from public release by executive privilege.
The fight over the scope and breadth of the redactions to the public version of the Mueller report will pit privacy, national security, and presidential privilege against the considerable public interest in the Russia investigation. It will play out on two fronts: the Justice Department will face off against Congress, where the House recently voted 420-0 to urge the DOJ to make the Mueller report public; and the DOJ will also have to battle private groups in federal court.
In fact, the latter fight has already begun. On Friday, the same day Mueller delivered his report to Barr, the Electronic Privacy Information Center (EPIC) filed a Freedom of Information Act (FOIA) lawsuit seeking the report and other Special Counsel materials.
It's going to take a while
Barr's initial review could take weeks, and FOIA lawsuits can drag on for years. It will be months before EPIC's lawsuit even gets rolling, and the government is notorious for stringing out public record suits as long as it can.
The federal court system is already jammed with a record number of FOIA lawsuits against the federal government by advocacy groups and news outlets. This is a result of both news organizations' zeal for investigating the Trump administration and the regrettable fact that the only reliable way to get public records from federal agencies in a useful timeframe is to sue them. (As a general matter, the federal government should release more records proactively and not fight FOIA lawsuits tooth and nail, which would speed up the release of public records.)
There will be many, many redactions
When the public version of the Mueller report is released, expect a lot of black boxes covering "sensitive" information. Some of these redactions will be the result of executive privilege—a power that allows the White House to withhold records concerning the president and his close advisers, under the reasoning that public disclosure would chill the president's ability to receive candid advice.
Bradley Moss, an attorney in Washington, D.C., who specializes in national security and FOIA litigation, says executive privilege will most likely come into play in the sections of the Mueller report on potential obstruction of justice by Trump.
"It's going to concern the nature of discussions and interviews with the president's inner circle—people like Hope Hicks and Don McGahn—who were there when he was ranting about wanting to fire Sessions or Mueller," Moss says. "The precedents in the Nixon and Clinton cases give us some guidance, but we don't know how it will play out."
Richard Nixon and Bill Clinton's attempts to invoke executive privilege in the Watergate and Monica Lewinsky scandals, respectively, were both rejected by federal courts, which have held that executive privilege is not a blanket protection against investigations into the Oval Office. The Obama White House likewise lost a bid to use executive privilege to withhold records tied to the Fast and Furious scandal from Republican-led congressional committees.
But executive privilege is still a powerful tool. For example, the White House Office of National Drug Control Policy recently invoked executive privilege to deny a FOIA request by Reason for 33 pages of fact-sheets from various federal agencies reportedly describing the dangers of marijuana legalization.
Executive privilege, like the ever-growing executive office itself, could stand to be rolled back. In the case of the Mueller report, the relevant conversations don't concern the Cuban Missile Crisis or any existential threat to the nation, but rather the president's handlers trying to control his intemperate outbursts.
Juicy Russia information will likely be classified
Intelligence agencies routinely withhold records under a "sources and methods" exemption, which will likely cover materials in the Mueller report on Russia's efforts to influence the 2016 presidential election.
"A lot of national security information might remain classified," says Jake Laperruque, senior counsel at the Project on Government Oversight, a government watchdog group. "The 'source and methods' exemption gets applied overbroadly, but it's certainly feasible to imagine that some of the information that led Mueller to make the conclusions he did would touch on sources and methods."
Courts give wide deference to intelligence agencies in such matters, and as Laperruque noted, FOIA offices use this to their advantage to frivolously withhold records.
Any national security redactions in the Muller report should be scrutinized. Unfortunately, it takes patience, a lot of money, and a bit of luck to defeat national security exemptions in court.
Grand jury information is almost never released
Under normal circumstances, there are privacy protections for records gathered by the government on private citizens, and rightfully so. Capricious, malicious, or incompetent government investigations can ruin private citizens' reputations—not just for the main subject of investigations, but also minor figures who are caught up in them.
But courts also balance privacy protections against the public interest, and in this case the circumstances are rather extraordinary. The bigger obstacle to releasing the full Mueller report will be restrictions against releasing grand jury information.
"The degree to which Privacy Act protections could apply I think would be limited [due to law enforcement exceptions to that law]," Laperruque says. "As a broad principle, in a case like this government has to balance privacy against efforts to report or inform the public. A main item that would be sealed are grand jury materials. A lot of fact-finding occurs through that, and those are not necessarily open to public disclosure."
Federal courts have on rare occasions released grand jury information, but the fact that the Mueller report did not conclude that Trump obstructed justice, or that the Trump campaign "colluded" with Russia, weighs heavily against disclosure.
In his four-page letter summarizing the Mueller report, Barr noted the restrictions on releasing grand jury information "protects the integrity of grand jury proceedings and ensures that the unique and invaluable investigative powers of a grand jury are used strictly for their intended criminal justice function."
The government's unfettered power to investigate potential crimes demands strong skepticism of the government's claims, and strong protections for the reputations of those investigated but never charged or convicted.
Rep. Justin Amash (R-Mich.) tweeted along similar lines today: "Whether it relates to Hillary Clinton, Donald Trump, or Jussie Smollett, it's inappropriate for a prosecutor to declare someone not exonerated. Either prosecute or don't, but the burden of proof is on the government."
The public can rest assured, though, that the Justice Department will likely be extremely vigilant in applying all the relevant exemptions it can to the Mueller report.
Moss says he expects the Justice Department "is going to take a broader view in the beginning, and then there will be negotiation back and forth to see how much they can ultimately agree to make public."
It will be up to transparency advocates and the public to see how much of the report they can claw back.