The Mueller Report: The Race to Disclosure

Nicole Campbell.jpg

By: Nicole Campbell, Class of 2020

On Friday, March 22, special counsel, Robert S. Mueller III, delivered his report on the inquiry into Russian interference in the 2016 election to Attorney General William P. Barr, thus closing the investigation that has riveted the country for almost two years. Immediately, both Republicans and Democrats took to their respective media and social outlets, to rejoice or weep at the news that there would be no further indictments, seemingly shuttering speculation that President Trump and other key players would be charged in the future. Whether President Trump was censured or exonerated was not clarified, as officials only emphasized that Mueller’s inquiry was over, his office closing.

While the Democrats have demanded to see the report published in its entirety, former congressman Trey Gowdy fought back, citing two potential issues:

  1. Highly classified counterintelligence regarding Russia’s actions--the information, sources, and methods therein simply cannot be made public, and

  2. Without charges on any individual, there is no history of issuing criminal reports on the uncharged.

Gowdy also reminded his Democratic colleagues of the criticism James Comey received when he held a highly controversial press conference which gave details about the investigation into Secretary Clinton's private email server. He noted that we get into murky territory when we start publicizing investigations on people who aren’t charged.

Meanwhile, in a separate but related case, a federal appeals court ruled on Friday, April 5, that federal district court judges have insufficient authority to demand the release of usually secret grand jury material, siding with the Justice Department’s long-held position that a formal change to the grand jury secrecy rule is necessary to grant judges that power. This determination will likely keep the report from becoming public, even though President Trump has commented that he has no objection to making the report completely available to the public, noting that the choice is ultimately up to the attorney general.  


In terms of the report becoming fully available for Congress members, the court can release grand jury information in limited exceptions covered in Rule 6(e)--most notably in instances “preliminarily to or in connection with a judicial proceeding.” There have been two instances in the 20th century that this exception has come into play--in the 1970’s on President Nixon’s Watergate scandal and in the 1990’s on President Clinton’s infamous misconduct. While there was clearly impeachment underway in the 1970’s, Ken Starr’s report was approved using the exception before the House Judiciary Committee had even contemplated impeachment, actually serving as the match that ignited impeachment proceedings against President Clinton. Furthermore, the exception was also used to usher the public release of the final report on the Iran-Contra investigation in 1994-where it was largely overwhelming public interest that spurred the court to act.

Congress has several avenues to continue to press for the release of this information, all likely requiring a “long game” strategy and partnerships both across party aisles and government branches. The House Judiciary Committee can still petition Chief Judge Beryl Howell for access to Mueller’s grand jury material, as she has been presiding over all related legal matters in this case. Even without support from the Attorney General or the DOJ, Chief Judge Howell has complete authority to issue an order giving Congress as much or as little grand jury material disclosure as she sees fit, even without Congress beginning impeachment proceedings.

Bibliography:

El-Mallawany. “What a Decades-Old Grand Jury Probe Just Revealed About the Mueller Report.” Politico. April 5, 2019. https://www.politico.com/magazine/story/2019/04/05/grand-jury-probe-mueller-report-226577

Gerstein, Josh. “Appeals court narrows path for disclosure of grand jury info in Mueller report.” Politico. April 5, 2019. https://www.politico.com/story/2019/04/05/grand-jury-mueller-report-1259671

Gerstein, Josh. “Press group asks judge to life grand jury secrecy in Mueller report.” Politico. April 1, 2019. https://www.politico.com/blogs/under-the-radar/2019/04/01/press-group-mueller-report-1246526

LaFraniere, Sharon and Benner, Katie. “Mueller Delivers Report on Trump-Russian Investigation to Attorney General.” The New York Times. March 22, 2019. https://www.nytimes.com/2019/03/22/us/politics/mueller-report.html

Quinn, Liam. “Trey Gowdy: Mueller punted conclusion on obstruction of justice due to ‘open ended’ question on presidential power.” Fox News. April 5, 2019. https://www.foxnews.com/politics/trey-gowdy-mueller-punted-conclusion-on-obstruction-of-justice-due-to-open-ended-question-on-presidential-power