As Attorney General William Barr on Wednesday did a final review of his redactions to special counsel Robert Mueller’s report before he releases it to the public on Thursday, his past words may provide clues about what he'll disclose.
Much attention when the report is released will focus on the issue of whether President Donald Trump committed obstruction of justice and, as Barr wrote in his four-page March 24 letter to Congress, why Mueller “did not draw a conclusion – on way or the other – as to whether the examined conduct constituted obstruction.”
But will that information be redacted? Barr addressed this during an April 9 House Appropriations subcommittee hearing. When chairman José Serrano, D-N.Y., asked if actions that the “special counsel investigated as potentially raising obstruction of justice concerns” will be identified in the report, Barr replied, “As things stand right now, I don’t think that they will be redacted, so they will be identifiable.”
Barr's letter indicated that Mueller “leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.”
But that letter never says what Mueller’s reasoning was for not reaching a conclusion on obstruction, only that “the report sets out evidence on both sides of the question.”
Will the public get to see that explanation?
As Barr testified before a Senate Appropriations subcommittee on April 10 that Mueller provides “a fuller explanation of that in the report that I’ll be making available.”
Pressed further by Sen. Chris Van Hollen, D-Md., about whether “the key factual evidence in the Mueller report related to charges of obstruction of justice will be available in the public report,” Barr replied, “I believe it will. And that's one of the reasons why I want to review it after the -- you know, when the redaction team is done making the redactions to make sure that there's nothing in there that would prevent that.”
If Mueller didn’t reach a conclusion about obstruction, did he take a position on who should?
Sen. Patrick Leahy, D-Vt., asked Barr if Mueller expressed “any expectation or interest in leaving the obstruction decision to Congress.” Barr replied, “Not that – he—he didn’t say that to me, no.”
“So, he said the obstruction decision should be up to you?” Leahy followed up.
“He didn’t say that either,” Barr responded.
So, what will be redacted? In his letter and again in congressional testimony Barr lays out four categories of information that will be kept from public view.
The first is grand jury or so-called 6(e) material, which refers to Rule 6(e) of the Federal Rules of Criminal Procedure requiring information from a grand jury proceeding to remain secret.
As Barr’s March 24 letter notes, “This restriction 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.”
That view was reinforced in an April 5 federal appeals court decision that outlined that “secrecy safeguards vital interests in (1) preserving the willingness and candor of witnesses called before the grand jury; (2) not alerting the target of an investigation who might otherwise flee or interfere with the grand jury; and (3) preserving the rights of a suspect who might later be exonerated.” Outside of some limited exceptions found in Rule 6, the appeals court found a lower court has no authority to disclose grand jury material.
Rep. Ed Case, D-Hawaii, asked Barr about whether he would ask the court to release grand jury material under one of those exceptions. Barr turned the tables, saying, “The chairman of the Judiciary Committee is free to go to court if he feels one of those exceptions is applicable.”
While the shroud of grand jury secrecy has been lifted in some notable cases including Watergate and the investigation that led to President Bill Clinton’s impeachment, it appears that the disclosure of grand jury material from the Mueller probe is unlikely to occur anytime soon, if ever, unless Congress persuades a court to do so.
The second category described by Barr is “information that the IC, the intelligence community, believes would reveal intelligence sources and methods.” A large part of the special counsel investigation involves Russian interference in the 2016 election. Such counter-intelligence investigations often rely on intercepts or information from foreign intelligence services. Barr’s letter states that Mueller’s team sought evidence from 13 foreign governments. These are the kinds of potentially sensitive matters Barr may seek to protect.
The third category involves ongoing prosecutions. Former Trump adviser Roger Stone, for example, was investigated by the special counsel and indicted in January, but his trial isn’t sent to begin until Nov. 5. As Barr puts it in his letter, “the Special Counsel did spin off a number of cases that are still being pursued and we want to make sure that none of the information in the report would impinge upon either the ability of the prosecutors to prosecute the cases, or the fairness to the defendants.”
The fourth category, Barr testified, involves “information that implicates the privacy or reputational interests of peripheral players where there’s a decision not to charge them.”
What does that mean for people like President Trump? Barr addressed this during his Senate testimony in a response a question from Sen. Jeanne Shaheen, D-N.H., who asked, “Does that mean that you will redact information to protect the reputational interests of the president?
Barr responded, “No. I'm talking about people in private life, not public officeholders.”
That could keep hidden the identities of uncharged people associated with the Trump family or businesses.
As Barr testified in his April 9 appearance before a House subcommittee, “the department's longstanding policy and practice is that if we are not going to charge someone, we don't go out and discuss the bad or derogatory information about them. That's what got everyone outraged at what FBI Director Comey did in the case of Hillary Clinton.”
In the end, will the public version of the Mueller report provide enough information to understand what investigators found? As Sen. Brian Schatz. D-Hawaii, put it, "the basic question I think for the public is are we going to get the gist of this or is it going to be, you know, on January 2015 and then--and then you have to flip 15 pages to find the next text?"
"You will get more than the gist," Barr answered.