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Monday, April 15, 2019

Congress requires the unexpurgated report, Mr. Barr

The highly redacted version of Robert Mueller's vaunted report is slated for release Thursday, according to the Justice Department.

I want the whole damned report. So do a lot of others. Unfortunately, we're not entitled to it.

The problem is that William Barr, who as AG ultimately oversees bowdlerizing — excuse me, redacting sensitive material in the report, has declared that Congress isn't entitled to the redacted material, either.

I'm not buying that, Mr. Barr.

Barr has identified a few categories of evidence that he insists must be redacted from Mueller's final report:

  • Evidence provided to the grand jury
  • Sensitive intelligence
  • Information concerning still-pending investigations
  • Information that might hurt the reputations of people investigated but not indicted
Let's take these in order.

Ordinarily, if a grand jury doesn't vote to indict, that sends the message that those accused of wrongdoing were not guilty of that wrongdoing, in spite of whatever suggestive or inflammatory evidence was available. Sealing the evidence provided to that grand jury protects the accused from being found guilty in the court of public opinion.

However, Justice Department policy strongly discourages indicting a sitting president. Thus a grand jury hearing about possible malfeasance by the sitting president is participating in an exercise that almost certainly will not result in charges being filed, no matter what the evidence would warrant if the subject weren't the sitting president.

The Watergate grand jury recognized this conundrum. Guided, I assume, by its collective sense of morality, that grand jury asked the judge to release the evidence it saw to Congress, reasoning that since Congress was given the power of impeaching the president, Congress should weigh the evidence against him. That precedent was followed in subsequent cases like Ken Starr's investigation into Bill Clinton.

Why not release the Mueller grand jury evidence to Congress? Isn't that the natural destination for evidence of wrongdoing by a sitting president?

Somebody has to ask a judge to release grand jury testimony. In addition to Barr, who already has told Congress he will not ask, the Mueller grand jury itself could ask, just as the Watergate grand jury did. Why hasn't it? Did the Mueller grand jury decide the evidence it saw should not be released? Did it not know it had that power? Did the idea never even arise?

Now, as to sensitive intelligence, it's clear the public is not entitled to such information. Congress, however, routinely reviews such intelligence. The relevant committees have well-established procedures to safeguard it. They have to have all possible intelligence information in order to know how best to safeguard the country, after all.

Why is Barr refusing to provide the House Intelligence Committee with the relevant underlying evidence found by Mueller's investigators?

I'll give Barr a pass on material relevant to ongoing investigations. As far as I know, Congress doesn't routinely get such information.

The fourth category of redacted information, material that might affect the reputations of unindicted persons, seems fishy. After all, one person we know the Justice Department would be unlikely to indict is the president himself. To use the pretext that he wasn't indicted as an excuse to conceal damaging evidence about him is perverse. At the very least, Congress has to evaluate the evidence for itself to decide whether impeachment is warranted.

Even if you believe that people other than the sitting president ought to be protected from disclosure of damaging information, you come back to the problem that AG Barr is fatally compromised as a trustworthy overseer of the redaction effort. His pre-appointment memo dismissing the validity of the Special Counsel's investigation ought to have prompted him to recuse himself from oversight of the investigation, including its release. We simply cannot trust AG Barr to redact anything without suspecting the redactions will protect this president.

The public will have to wait for decades to see the unredacted report, I suspect. Congress, however, must see it now. It's why the public elects representatives — they have to have access to material the rest of us can't be trusted to see.

You have no fig leaf, AG Barr. You're stonewalling on behalf of the most corrupt president in modern history. You're complicit in his corruption and his criminality.

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