Last week, the House voted 420-0 to make special counsel Robert Mueller’s findings and report public. I hope Attorney General Bill Barr was watching.
The House vote was necessary because, contrary to the public’s near universal expectation and support for making Mueller’s conclusions known at the end of his investigation, transparency is not assured. Barr, who expressed skepticism about the special counsel’s investigation before his nomination, may claim that Department of Justice regulations and policy justify withholding nearly all of Mueller’s work from Congress and the public.
The overwhelming nature of the House vote makes clear that would be completely unacceptable. With narrow redactions for classified information, we expect the public release not only of Barr’s report regarding Mueller’s activities, but also of Mueller’s complete report to the attorney general.
That is not all. While Mueller has brought numerous successful prosecutions, the probe that he has supervised began as a counterintelligence investigation, first made public by former FBI Director James Comey in testimony to the House Intelligence Committee. The evidence uncovered during that investigation, whether or not it results in criminal charges, is of the utmost importance. It may reflect on a threat to the country’s security, and it cannot be withheld.
Congress has a fundamental and overriding interest in obtaining this underlying evidence. The Justice Department and the intelligence community are obligated to share with the intelligence committees any counterintelligence findings and information related to the president or those in his orbit, including evidence collected by the special counsel’s office or ancillary investigations by the FBI. If the president or anyone around him has been compromised by a hostile foreign power — whether criminal or not — that compromise must be exposed to protect the country.
Nevertheless, there are troubling suggestions that the attorney general may resist. In recent public remarks, the outgoing Deputy Attorney General Rod Rosenstein cast doubt on the need for transparency. Last week, two anonymous sources described as senior department officials told ABC News that if Justice chose to withhold information from Mueller’s investigation, doing so would be consistent with past practices.
No excuse to bury findings on Donald Trump
This claim withers under scrutiny, and an examination of the department’s actions over the past two years.
During the last session of Congress, the Republican majority sought voluminous discovery from the department regarding the Hillary Clinton email investigation, as well as the ongoing Mueller investigation. Last July, I was informed by the department that it had provided more than 880,000 pages of internal investigative records from the Clinton probe to the GOP-led Congress, with more to come. These documents were predominantly from the Clinton probe, but also included thousands of pages of highly sensitive documents related to the ongoing Mueller investigation.
At the time Republicans were seeking these records, I repeatedly made clear to top department officials that if they reinforced a precedent of providing evidence of this kind to Congress, they would have to live with it, even if Congress changed hands. Surely the department could not provide ample information about charged and uncharged persons in an investigation concerning Clinton but then withhold equivalent information about the potential compromise of a sitting president.
Yet this appears to be where the department is heading. The justification given by the two anonymous Department of Justice sources is head-spinning: They put the blame on Comey. In this view, by publicly foreclosing prosecution of Clinton while also criticizing her behavior, Comey gave the department no choice but to oblige congressional requests for materials from the email probe. Because there has been no analogous “Comey moment” in Mueller’s investigation, the argument goes, the DOJ may withhold information from Congress and the public.
Reject double standard on transparency
There is a major problem with blaming Comey for the department’s predicament: DOJ gave the more than 880,000 pages of documents to Congress in response to subpoenas issued after his firing, not before. The reality is that the department did so because of the intense public interest, and because Congress insisted on transparency. Doing so was also not an aberration. Beginning with Watergate, DOJ and the intelligence community have provided investigative and counterintelligence records to Congress in matters of surpassing public interest.
Congress’ institutional interest in obtaining Mueller’s evidence clearly meets and exceeds this bar. Because President Donald Trump is positioned to interfere in an investigation in which he may be implicated — and indeed has sought to do so repeatedly — the prospect of a cover-up is far from speculative. That was not the case in the Clinton email investigation, in which there was no risk that the candidate could influence a probe carried on under someone else’s administration.
Finally, the Justice Department’s policy that a sitting president cannot be indicted makes the need for transparency even more compelling. If the department holds that the president cannot be indicted, but at the same time withholds evidence of his wrongdoing from Congress and the public — that is a recipe for impunity. No one is above the law. Not this president. Not any president.
The special counsel regulations were drafted to ensure public confidence in the impartiality of investigation through the independence of the prosecutor, and by leaving intact the attorney general’s ability to make that work public to dispel any concern of a cover-up. Should Justice abandon its own practices and employ a double standard when the need for transparency is most vital, it will stain the department’s reputation for years to come.
Attorney General Barr, do not make that your legacy.
This piece was originally published in the USA Today.