William Barr Just Gave Himself an Excuse for Not Making Mueller Report Public

Attorney General nominee William Barr was saying all the right things in his written prepared remarks that were submitted prior to his confirmation hearing, and then at the hearing itself on Tuesday, when it came to Special Counsel Robert Mueller‘s investigation. At least, it seemed that way.

Not only did Barr say that it is “vitally” important that Mueller conclude his investigation, he said, “it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.”

During Tuesday’s hearing, the topic of Mueller’s report came up again.

Sen. Dianne Feinstein (D-Calif.) read two questions that were passed along to her from House Judiciary Chairman Rep. Jerrold Nadler (D-N.Y.).

First, Feinstein asked, “Will you commit to making any report Mueller produces at the conclusion of his investigation available to Congress and to the public?”

Barr responded, “As I said in my statement, I am going to make as much information available as I can, consistent with the rules and regulations that are part of the special counsel regulations.”

The next question was, “Will you commit to making any report on the obstruction of justice public?”

“That’s the same answer,” Barr replied.

Feinstein appeared satisfied with this, and moved on from there.

At first, this sounds like a commitment to transparency—and indeed it may be—but a quick look at the special counsel regulations shows that this may not be the case.

28 CFR § 600.8(c) addresses reports from the Special Counsel. It says:

At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

The key word there is “confidential,” which means that by nature, Mueller’s report will not be public when it is first submitted to the Attorney General. As far as what happens next, 28 CFR § 600.9 deals with that.

Section 609(a)(3) says that the Attorney General shall notify the chairs and ranking members of the House and Senate Judiciary Committees “[u]pon conclusion of the Special Counsels investigation.”

Section 609(b), however, says that the Attorney General can delay any report “upon a finding that legitimate investigative or privacy concerns require confidentiality.” It goes on to say, “At such time as confidentiality is no longer needed, the notification will be provided.”

This means that if Mueller concludes his investigation and submits a report to Barr, Barr can keep that information to himself if he finds that there is an investigative or privacy concern, and then report to Congress later at a politically convenient time.

Even if/when Barr does report to Congressional leaders, that report doesn’t have to be detailed. It could be just a few sentences summing up Mueller’s conclusion, according to Neal Katyal, who helped draft the special counsel regulations.

The regulations prevent the Attorney General from acting against a special counsel’s recommendations without Congress knowing about it, but they don’t require full transparency of the special counsel’s findings.

As far as releasing information to the public, Section 600(c) says:

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.

All this being said, this means that Barr would be within his rights to release details of Mueller’s investigation to the public if he so chooses, but he would also be within his rights to withhold them if he finds reason to do so.

[Image via PBS screengrab]

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