By U.S. Government – OSC website, Public Domain, Link

The two-year investigation by Robert Mueller and his team of investigators is rumored to be nearly complete. There are concerns, especially by House Democratic congressional investigators, that the details of that investigation will remain secret. They are publicly expressing hope that the full report details will be made public—or at least transferred to their respective committees of jurisdiction as they pursue their own investigations of President Trump, his family members, and others.

The Mueller probe was initiated to investigate the possibility that Russian government agents illegally influenced the 2016 presidential election. Supporters of the probe point to the indictments or convictions of 30 or more individuals so far, while Trump supporters note that, to date, none of those legal actions concern conspiracy or other crimes involving the 2016 election directly. (It should be noted that “collusion” is not a crime per se, but the term could be used to describe potentially illegal conduct involving a conspiracy.)

Beginning with the Watergate period in the 1970s, the US government has used three methods to investigate potential corruption and crimes at the highest levels. The first was a special prosecutor, the second was an independent counsel (think Kenneth Starr), and the third version is the special counsel statute currently in place. Wikipedia has an article discussing the history of the special prosecutor process and the differences between the three terms.

As reported by The Hill, during US Attorney General William Barr’s confirmation hearings, he told committee members that he would release “as much information about Mueller’s final conclusions as possible consistent with the law—but he was careful not to commit to releasing the report in its entirety.” Why would he hedge in this way?

Simply put, the special counsel statute restricts what the Attorney General may share with Congress and the public. Here are the relevant portions of the statute as reproduced on the Cornell Law School web site, with a link to the full statute page here:

28 CFR § 600.8 (c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

28 CFR § 600.9 (a)(3) Upon conclusion of the Special Counsel’s investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

28 CFR § 600.9 (b) The notification requirement in paragraph (a)(1) of this section may be tolled [i.e., the “clock” on the notification time requirement may be delayed] by the Attorney General upon a finding that legitimate investigative or privacy concerns require confidentiality. At such time as confidentiality is no longer needed, the notification will be provided.

28 CFR § 600.9 (c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

What are the limitations on disclosure referred to in the statute? The key element was summarized by the Brookings Institution in Congressional testimony at the time the statute was being considered:

Presumably, the major but not exclusive constraint on public release would be the restriction in Rule 6(e) of the Federal Rules of Criminal Procedure on release of grand jury information. Under section 600.9(c) of the regulations, the special counsel is not authorized to release information apart from “generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.”

Why would legislators, who are also politicians, have been willing to place restrictions on public disclosure of potentially damaging information about other politicians and public figures? Simply put, recent history.

The independent counsel statute, which was replaced by the special counsel statute currently in force, was widely regarded as providing too much independence to the individual selected as independent counsel. Specifically, the individual in question was Kenneth Starr, and the report involved his team’s investigation into a real estate partnership known as Whitewater. What started as an investigation into a 1980s land deal in Arkansas later expanded into perjury, bribery, and subornation of perjury allegations related to former President Clinton’s relationship with Monica Lewinsky and pending litigation accusing the president of sexual assault against Paula Jones while governor of Arkansas. Starr’s full report was transmitted to Congress and released, in its entirety, to the public before many House and Senate members had even had the chance to review its findings and see its excruciating sexual detail. Moreover, the report presumed to advise Congress on the potential for impeaching the president based on Starr’s findings.

Congress didn’t like the behavior of Ken Starr as independent counsel, Congress didn’t trust itself to keep a confidential report confidential, and it definitely didn’t want an outside entity setting the agenda for impeachment discussions. Therefore, the current special counsel statute was designed with three key changes in mind: 1) rein in the independence of the counsel by creating a direct line of accountability to senior US Justice Department officials; 2) specify that only a summary report should be submitted by the Attorney General to Congress; and 3) maintain silence on the issue of using a special counsel’s findings as the basis for impeachment deliberations.

There is another matter to consider. If a special counsel knows or reasonably believes that anything they report to the Attorney General will ultimately become public in its raw form (the Starr Report, for example, had almost 500 footnotes), one or more special counsels may be tempted to omit significant amounts of raw data, particularly information likely to be sensationalized or misinterpreted by the public. Mandatory public disclosure could have a “chilling effect” that might interfere with the quantity and quality of information provided by the special counsel to the Attorney General.

The US House of Representatives may soon consider a nonbinding resolution encouraging full disclosure by Robert Mueller, including evidence sharing with Congressional committees. If the Attorney General believes that that special counsel statute does not allow such unfettered disclosure, the next likely step will be litigation on at least two fronts. First, litigation to compel the Attorney General and/or the special counsel to disclose all information of interest to Congress or the public. Second, formal requests could be made to the federal judges overseeing the grand juries Mueller has worked with, asking the judges to unseal (remove from judicial confidentiality) portions of or all the documents and testimony accessed by the grand jury.

It’s easy to argue for the public’s right to know, but the special counsel statute illustrates the difficulty with such blanket statements. Some of the same people we trust to uphold federal law and the Constitution are being tested in the court of public opinion. The law governing special counsels may itself be tested in court to assess the limits of public disclosure of investigative materials typically protected by the rules of federal procedure.