For two years, congressional Democrats have incessantly—and correctly—rebuked President Trump for his attempts to undermine and discredit the Mueller investigation into Russia’s meddling into the 2016 election and any ties to the Trump campaign. Now that the Mueller report is on the verge of being released, however, Democrats have begun to lay the groundwork for an evidence-free discrediting strategy of their own: denouncing the redacted version that Attorney General William Barr is set to disclose later this month as a deceptive document meant to cover for the president.
Democrats first began to signal they would not be satisfied with a redacted report in the days immediately after Mueller sent his report to the Justice Department, when Barr sent a four-page letter informing Congress of a few of its central takeaways: that Mueller had not uncovered proof that the Trump campaign colluded with Russia’s criminal election meddling, and that the actions Trump had taken to hamper ongoing investigations did not, in Barr’s judgment, rise to the level of criminal obstruction of justice. Democrats confirmed they were going all-in on that strategy when House Judiciary Committee Chairman Jerrold Nadler announced on Monday that his committee would issue a subpoena to compel the Justice Department to hand over the full, unredacted report to Congress.
“As I have made clear, Congress requires the full and complete special counsel report, without redactions, as well as access to the underlying evidence,” Nadler said in a statement. “The attorney general should reconsider so that we can work together to ensure the maximum transparency of this important report to both Congress and the American people.”
The effort to ensure that Mueller’s central conclusions become public is understandable. If there were genuine reason to believe Barr is defanging the Mueller report on Trump’s behalf, such hardball tactics might even be justified.
But Barr has consistently and repeatedly vowed to release the full report, excepting such redactions as are required by law. He first made this pledge back during his confirmation hearings in January: “I will commit to providing as much information as I can consistent with the regulations.” And he made it again in a letter to Congress last Friday: “We are preparing the report for release, making the redactions that are required.” In that letter, Barr also specified what material the department was redacting: confidential grand jury proceedings, sensitive information related to intelligence sources and methods, information related to prosecutions already underway as a result of charges already brought by Mueller, and “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” Crucially, Barr also said that Robert Mueller himself is involved with the work of making these necessary redactions.
As Lawfare’s Benjamin Wittes notes, this is an entirely reasonable blueprint for redactions: “Barr has laid out a short time frame in which he has promised to make a capacious set of disclosures subject to a few discrete areas of necessary confidentiality.” If there’s any question whether Nadler appreciates this sort of “necessary confidentiality,” one need only look at how he handled similar situations in the past: Back in 1998, the Washington Examiner reported Tuesday, Nadler opposed the release of an unredacted Starr Report because of the importance of protecting “grand jury material” and “people’s privacy rights, people who may be totally innocent third parties, what must not be released at all.”
Barr, in other words, is behaving exactly as Nadler should hope the attorney general would act in such a situation: working to prepare the report for public release consistent with all applicable laws. Barr has even said he is willing to appear voluntarily before Congress to answer questions about that work once the report is released. But rather than opting to wait and see what Barr hands over, Nadler has instead chosen to treat Barr like a recalcitrant, threatening a tool, the subpoena, ordinarily reserved for compelling the testimony of the unwilling.
He is doing so, moreover, in spite of the fact that the subpoena is unlikely to affect how much of the Mueller report is released in any actual concrete way.
“If Barr is over-protecting material in the report, and the subpoena is seeking the entire thing, then it ultimately would be for the courts to work out how much Barr is over-protecting, and how much the House is entitled to,” Steven D. Schwinn, a law professor at the John Marshall Law School, told The Bulwark. “In truth … the courts don’t like to get involved in this kind of thing, and largely avoid it, leaving it to Congress and the administration to work out.”
“I don’t think it will have any effect on what General Barr is going to do,” said John Malcolm of the Heritage Foundation, a former federal prosecutor. “He has already said that he is going to release what he’s going to release by mid-April if not sooner, so that will be sometime within the next two weeks. I don’t think that being issued a subpoena, along with I suppose the implied threat of being held in contempt of Congress if you ignore that subpoena, is going to intimidate General Barr in any way, shape, or form.”
Nadler’s subpoena, then, is best seen as an act of political maneuvering: an advance indicator that Democrats are gearing up to portray necessary and innocuous redactions in the Mueller report as a grand coverup by a compromised attorney general to protect his boss the president. On a political level, this may benefit the Democrats in general and Nadler in particular: Keeping the Democratic base fired up about a grand Russia conspiracy, proof of which lurks just out of reach, and keeping Nadler in the public eye as the man who will stop at nothing to uncover it.
From the perspective of getting to the truth of Mueller’s findings, however, Nadler’s actions are indefensible. Rather than waiting to assess the meaty report Barr that has promised to disclose in good faith on its merits, he and his allies on the House Judiciary Committee have prejudged Barr as an unreliable actor and thus cast a pall over the denouement of a tremendous national controversy.