Within minutes of receiving notification that special counsel Robert Mueller had turned over his report on the Russia investigation, congressional Democrats were calling for the report to be fully released, including the underlying evidence. They have threatened subpoenas if it is not.
The demands are setting up a potential tug of war between congressional Democrats and U.S. President Donald Trump’s administration that federal judges might eventually have to referee.
Six Democratic committee chairs wrote in a letter to Attorney General William Barr on Friday that if Mueller has any reason to believe that Trump “has engaged in criminal or other serious misconduct,” then the U.S. Justice Department should not conceal it.
“The president is not above the law and the need for public faith in our democratic institutions and the rule of law must be the priority,” the chairs wrote.
It’s unclear what Mueller has found related to the president, or if any of it would be damning. In his investigation of whether Trump’s campaign co-ordinated with Russia to sway the 2016 election, Mueller has already brought charges against 34 people, including six aides and advisers to the president, and three companies.
No release without incriminating evidence?
Lawmakers say they need the underlying evidence — including interviews, documents and material turned over to the grand jury — because the Justice Department has maintained that a president cannot be indicted, and also that derogatory information cannot be released about people who have not been charged. So if the investigation did find evidence incriminating Trump, they may not be able to release it, under their own guidelines.
The Democrats say it could be tantamount to a coverup if the department did not let Congress and the public know what they found.
Consultations before sharing
Barr said in the letter advising the top lawmakers on the House and Senate judiciary committees on Friday that he had received Mueller’s report that he intends to share its “principal conclusions” with lawmakers soon, potentially over the weekend. He also said he will consult Mueller and Deputy Attorney General Rod Rosenstein about what other parts of the report can be shared with Congress or the public.
Barr testified at his confirmation hearings that he wants to release as much information as he can about the inquiry. But the department’s regulations require only that the attorney general report to Congress that the investigation has concluded and describe or explain any times when he or Rosenstein decided an action Mueller proposed “was so inappropriate or unwarranted” that it should not be pursued. Barr said Friday there were no such instances where Mueller was thwarted.
But anything less than the full report won’t be enough for Democrats.
Democratic House Speaker Nancy Pelosi called Barr’s offer to release a summary “insufficient” and urged him to release the full report to lawmakers so their committees could proceed with their “independent work.”
Pelosi also said in the statement that any congressional briefings on the report should be designated unclassified so members “can speak freely” about them.”
Subpoena possible to push for disclosure
House intelligence committee chair Adam Schiff told CNN on Friday that he’s willing to subpoena Mueller and Barr, if needed, to push for disclosure.
The people deserve to know.– Democrat Sean Patrick Maloney
Though Trump himself has said the report should be made public, it’s not clear whether the administration would fight subpoenas for testimony or block the transmission of grand jury material.
If the administration decides to fight, lawmakers could ask federal courts to step in and enforce a subpoena. A court fight could, in theory, reach the Supreme Court. But few tussles between Congress and the White House get that far. They often are resolved through negotiation.
In both the Clinton and Obama administrations, even when talks failed and courts got involved in assessing claims of executive privilege, the White House decided not to take the fight to the high court and complied with lower court rulings against it.
The Democrats, led by judiciary committee chair Jerrold Nadler, could also formally ask Mueller to send his committee evidence that could be used in possible impeachment proceedings against Trump, as suggested by Benjamin Wittes, a senior Brookings Institution fellow and editor-in-chief of the Lawfare blog.
That’s the course one of Nadler’s predecessors followed during Watergate, although an impeachment inquiry against Richard Nixon had already started by that point. Grand jury material from special counsel Leon Jaworski, provided through the federal judge who presided over the Watergate trials, became the road map that the House committee used to vote for articles of impeachment. Nixon resigned before the full House acted on his impeachment.
House Speaker Nancy Pelosi said recently that she’s not for impeaching Trump, at least for now.