Rescind 28 CFR § 600.9(c) - Eliminate Any Expectation That The AG Will Publicly Release The Special Counsel's Report

Nothing good comes from releasing a declination report for a person who will not be indicted.

What do James Comey, Robert Mueller, and Robert Hur have in common? They each refused to seek criminal charges against a prominent politician, but in doing so, revealed damaging information about that politician. FBI Director Comey's remarks about Hillary Clinton's email server may have cost her the 2016 election. Special Counsel Robert Mueller's report led to an impeachment inquiry for President Trump. And Special Counsel Robert Hur's report about President Biden's mental state very well may undermine his election chances.

Again, Clinton, Trump, and Biden were not prosecuted. Yet in each case, federal law enforcement officials explained to the public why no charges would be brought. As much as I favor transparency, I think publicizing the decision not to indict is a mistake. Nothing good comes from releasing a declination report for a person who will not be charged. Prosecutors speak through indictments: either bill, or no bill. Anything short of an indictment should not be disclosed to the public.

Which brings me to the title of this post. The current special regulations provided that the  special counsel, at the "conclusion" of his work, "shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel." 28 CFR § 600.8(c). This requirement is salutary. The Attorney General should know why the special counsel is, or is not seeking an indictment.

The regulations, however, do more than require the special counsel to give a confidential report to the Attorney General. The regulations create an expectation that the Attorney General will publicize the report:

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. 28 CFR § 600.9(c).

This provision is a mistake. If the special counsel recommends an indictment, and the official is indicted, let the indictment speak for itself. If the special counsel declines to recommend an indictment, simply decline to indict, and let everyone move on with their lives. Again, there is no actual mandate to release the report. But this provision creates an expectation that it will be released.

I can see several benefits if this provision is rescinded. First, the special counsel would not feel like he is writing for the history books. A short memo that explains his declination decision would suffice. Such a brief report could also expedite the declination decision--which is in everyone's interest. Second, the Attorney General will no longer be forced to consider whether to invoke executive privilege and redact portions of the report. Indeed, since nothing would be redacted, the special counsel could be even more forthright in his recommendations.  Remember, there was lengthy litigation over redactions made by Attorney General Barr. And perhaps Attorney General Garland should have whipped out his redaction marker for the Hur report. Third, if the report is never released, the Attorney General would not be put in the tough spot of trying to summarize a report he disagrees with. Remember how much flak Barr got for his summary of the Mueller report. Nothing good comes from making this report public.

I remain persuaded by Justice Scalia's dissent in Morrison v. Olson as a policy matter: it is impossible to separate criminal prosecution from political accountability. So don't pretend otherwise. Indeed, Attorney General Merrick Garland is under scrutiny from the White House for not bringing charges against Trump sooner, but instead caving to political pressure, and appointing Jack Smith. Had Garland proceeded on his own, Trump could have already been brought to a verdict. But here we are, with the Supreme Court on deck.

Like the expired independent counsel statute, the special counsel regulations have failed (sorry Neal). I hope there is a bipartisan consensus on this issue now. If it were up to me, the entire suite of regulations should be rescinded in the next administration. And they should be rescinded before any new special counsels are appointed. I'm not sure who would even have standing to challenge such a rescision. (A current special counsel might have standing.) (I wrote about the repeal of the regulations in 2018.) At a minimum, rescinding 28 CFR § 600.9(c) should be a priority.

Comments

[Roger S]

We are all at the mercy of federal prosecutors, who could use vague federal laws to jail us on dubious charges. If it becomes clear that all the major politicians, of both parties, are subject to this tyrannical system, then maybe something will be done about it. Blackman just wants to hide the problem.

[NvEric]

They're not vague federal laws, they are degenerate implementations by degenerate federal employees.

Our modern day federal actors, of an insurrection, in which support of degenerate uses of law abound to no end. Their continuing on this course will, and have, reduced their legitimacy whence sturdy patriots are free to implement the rightful legal framework.

[Brett Bellmore]

Or maybe since it’s clear that almost all major politicians, with rare strategic exceptions, are NOT subject to this system, but instead once their likely guilt was established are given a pass, we could do something about THAT.

As it is, about the only accountability people at the highest level of politics face for their crimes is having a bit of their dirty laundry exposed, and Blackman would like to eliminate that, too.

The idea that somebody thinks our system has too much transparency… It blows my mind.

[santamonica811]

It's not a terrible suggestions. I'd have to think about it some more.

But one advantage to a public report is that it balances out an unethical AG. Barr really mischaracterized (to be charitable), or lied about (to be less charitable) the findings. That was bad enough . . . his false summary had several days of publicity, if I am recalling correctly, before the real report was released. Not sure if those bells ever were successfully un-rung. But without the report? Barr's false statements in favor of Trump would have stood entirely or largely unchallenged.

Since we can't trust at least some AGs (MAGA diehards would probably say the same about Garland), maybe sunlight is the best disinfectant.

[Thomas L. Knapp]

All government documents are public property and at the very least "final work product" reports of all types should, by law, be posted to a publicly accessible and legibly cataloged web site within 24 hours of their production, with heavy penalties for violating or evading that requirement.

[Stephen Lathrop]

One might well suppose Garland should have forbidden release of the gratuitous critique of Biden's competence. One might also well suppose that if Garland did forbid that, Hur or some other insider would have arranged for a leak, with the result that right-wingers could target Garland for a coverup accusation.

[Reallynotbob]

File 'em right next to the Pentagon war plans, right?

[iowantwo]

What exactly did Barr lie about?

[Magister]

Among other things, Barr stated “the White House fully cooperated with the Special Counsel’s investigation” but the Mueller report describes that Trump declined to be interviewed or to provide answers to questions related to obstruction or events during the transition.

More significantly, Barr pretended that Trump was exonerated on obstruction of justice, but the Mueller report explicitly stated that it did not exonerate him. Barr stressed that Mueller found no collusion, but Mueller’s report made clear that they focused on conspiracy rather than collusion, as “ollusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law”.

[Brett Bellmore]

"but the Mueller report explicitly stated that it did not exonerate him. "

That was actually one of the more egregious aspects of Mueller's report, that line.

Presumption of innocence: Nobody has any need of being exonerated until they've first been convicted of something. It wasn't Mueller's job to exonerate Trump, it wasn't within his power, even. It was his job to see if he could implicate him.

Having failed at that task, Trump's presumption of innocence stood unrebutted, and he was in no need of exoneration.

[Magister]

One can be exonerated by discovery of additional evidence or witnesses, without ever being indicted, let alone convicted. It's rich for a Trump cultist to talk presumption of innocence after the sordid spectacle of "Lock her up!" chants.

The report did not exonerate Trump, as Mueller testified; Mueller did not consider prosecuting Trump because that is the DOJ policy, not to indict the current president, but he did lay out possible obstructions of justice for Congress.

https://apnews.com/article/130932b573664ea5a4d186f752bb8d50

And Trump is still an insurrectionist, too.

[Roger S]

Barr accurately summarized the report, and then gave his own opinion. In Barr's opinion, the report did exonerate Trump. In my opinion also. Possibly also Mueller's opinion, as he was incoherent.

[Magister]

Mueller testified otherwise.

[Dan Schiavetta]

This is actually a good idea. The prosecutor should let the indictments do the talking.

[Dilan Esper]

Agreed. Prof. Blackman has lurched uncontrollably into the truth, as the late John McLaughlin would have said.

[Dan Schiavetta]

What Josh did not mention was that the Mueller investigation even without the report did a lot of talking — 37 indictments. The Hillary Clinton investigation, zero. The Hur investigation, zero.

[iowantwo]

even without the report did a lot of talking — 37 indictments

There were ~12 Russian indictments, Knowing full well the SC would never have to present any evidence. BUT, when one did show up for court, Mueller immediately asked for a continuance. The Judge was forced to explain to Mueller that the Indictment signified the Govt was ready for trial. Mueller pulled the charges.
The rest of the indictments had nothing to do with the Russia! Russia! Russia. dog and pony show, nor Touched Trump

[Dan Schiavetta]

Here are the inidictments and guilty pleas etc,

https://time.com/5556331/mueller-investigation-indictments-guilty-pleas/

It’s remarkable that you call it a dog and pony show when the Trump people tried to collude, thought they were colluding, and were crowing about reaping the benefits. Remember Trump publicly announcing ahead of the Trump Tower meeting that he would shortly have “very interesting news” about Hillary Clinton?

[iowantwo]

Like I said, nothing connected to do with Russia! Russia! Russia!
Lots of process crimes. Flynn actually finally had charges dropped.
The Russian indicted for the Email hack? According to Crowd Strike CEO sworn Testimony to Congress, those E mails were NEVER hacked.

Mueller got a huge ZERO. and NOTHING touched Trump

[Voize]

I was prepared to agree with the Professor, but on closer examination I think he is looking at the wrong report.

Section 600.9 is titled "Notification and reports by the Attorney General", and 600.9(c)'s "the public release of these reports" is most naturally read as a reference to the notices and reports the AG sends to Congress in compliance with 600.9(a). He is encouraged to make those public, but

All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

Reports by the Special Counsel, in contrast, are governed by section 600.8. It says the Special Counsel's final report is confidential and delivered only to the AG.

Rescinding 600.9(c) then wouldn't really affect the landscape. AGs releases of Special Counsel reports can only be relying on "Departmental guidelines" and "relevant law" for authority, 600.9(c) doesn't authorize those releases.

[John F. Carr]

"FBI Director Comey's remarks about Hillary Clinton's email server may have cost her the 2016 election."

Comey didn't release a report at the last minute. He made a comment about further investigation. For some reason I don't understand America was shocked that two well known Democratic politicians may have exchanged email.

[Lee Moore]

Comey didn’t release a report at the last minute. He made a comment about further investigation.

Yup, he announced at an inconvenient time for Hillary - ie before the election - that the FBI was investigating a new batch of Hillary emails.

But he did so only because he had been warned that some FBI peons in New York knew that these "new" emails had been sitting at FBI HQ being deliberately ignored by the "investigative" team for over a month, lest they showed anything dodgy, and said peons might leak that fact to the media.

Hence Comey had the choice between :

(a) announcing that an investigation was in progress, or
(b) seeing media splashes about the FBI deliberately slow walking their investigation and ignoring new Hillary emails

He concluded that (b) would be worse for Hillary and for the FBI - especially as he knew the investigative team would be able to pretend to have done an investigation in time for a second statement of "we got nuttin" before the election.

[Lee Moore]

“FBI Director Comey’s remarks about Hillary Clinton’s email server may have cost her the 2016 election.”

Nate Silver did an interesting analysis after the 2016 election suggesting that this is a myth.

His analysis showed that polls published after Comey’s statement showed a small dip in Hillary support compared to polls published before, and thereafter stayed steady at the new lower level.

However it turned out that those “post Comey” polls that showed the dip, were published “post Comey” – but the fieldwork had all been done “pre Comey.” Thus the “Comey effect” was an illusion caused by the small delay between fieldwork and publication.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

A fine idea ... if you trust government actors to always do the right thing, to always hold the powerful to account.

Anyone who believes that is a ass.

Hillary lost the election because she did something bad? COVER IT UP NEXT TIME!

Trump lost the election because he did something bad? COVER IT UP NEXT TIME!

Biden may lose an election because he did something bad? COVER IT UP!

[Sarcastr0]

This is some finely tuned paranoia - if the government's committed to covering things up, they can just assure it's not put it in the report at all.

[DaveM]

The idea may be a good one, but the timing stinks. As I repeatedly told my Trumpian friends, if you wait until after an election to sue over an election process issue, you’re too late. Timing matters.

Besides which, I have to stand up for my fellow amateur historians and remind everyone that it’s almost never just one thing. In this case, it’s not just the Hur report, it’s the press conference that followed it and the parade of verbal gaffes, air hand shakes, stair stumblings, etc. that preceded those two.

And ditto for what James Comey did with Clinton. Being in IT, I followed all the technical details of what Clinton, Inc. did to hide whatever it was they wanted to hide, and it’s a long, long, long list. Comey tried to play Good Cop, but in my opinion, he was merely the last of the reasons why Hillary lost.

[Brett Bellmore]

And if you do it before the election, the issue isn't ripe yet. There's actually no winning, if the judiciary doesn't want you to win.

"Comey tried to play Good Cop"

Comey was given a dirty job by Lynch, and then he half-assed it.

He could have said, here's all the reasons she's guilty as hell, and what do we do with people who are guilty as hell? We prosecute them!

She wouldn't have been prosecuted anyway, and he'd have lost the job, but, hey, he'd have gone out looking like an honorable man.

He could have said, "Nothing here folks, it was all a nothing burger." and he would have been duly rewarded for doing a good job with the white wash.

But, no. He tried to split the difference, and pleased nobody. Made it clear she WAS guilty as hell, and then announced she wouldn't be prosecuted anyway.

The guy simply didn't understand that you can't be partially dirty, you've got to be all dirty, or clean.

[Darth Buckeye]

My concern is that politically favored suspects will benefit from whitewashes that will never be exposed.

[Lee Moore]

Exactly. If the custom is changed as Blackman proposes, we will simply have a the usual two tier system.

Protection for Democrats and leaks for Republicans.

[tkamenick]

"Nothing good comes from releasing a declination report for a person who will not be charged."

Except for public oversight of a massively important decision made by government officials. Geez.

[David Nieporent]

This is (for once) not an entirely dumb suggestion by Blackman, but it is naive.

It's not the regulation that creates the expectation that the report will be released; it's custom. Unless the regulation says exactly the opposite — that the report is confidential and may not be released — then there will continue to be immense political pressure to release it.

The entire point of the process is to reassure the public that the decisions about prosecution are not political. If the special prosecutor says nothing more than "I recommend against prosecution," it will not satisfy anyone who is a critic of the subject of the investigation.

Okay, this part of the post is dumb:

Indeed, Attorney General Merrick Garland is under scrutiny from the White House for not bringing charges against Trump sooner, but instead caving to political pressure, and appointing Jack Smith. Had Garland proceeded on his own, Trump could have already been brought to a verdict.

The special prosecutor process was not the source of delay. Garland moved slowly because Garland was moving slowly. He appointed Smith because Trump declared for president, at which point the conflict of interest was too much. Smith has moved reasonably quickly since he was appointed.