Few matters are of greater public interest than the contents of the report produced by Special Counsel Robert Mueller on his recently completed investigation into Russia’s interference in the 2016 presidential election, alleged collusion with the Trump administration, and any interference with the Mueller investigation. Attorney General William Barr has conceded that there is extraordinary public interest in the report. Yet there remain grave concerns that he will redact significant facts from the report, denying the public access to information. At a House hearing, Barr said Tuesday that he intends to release a redacted version of Mueller’s report “within a week” and that he plans to explain his rationale behind each redaction.
The ACLU is committed to transparency and accountability in government, and therefore we have called on Attorney General Barr to transmit the full, unredacted report to Congress for its use in oversight, including determining whether a congressional investigation of possible obstruction of justice by Trump and his associates is warranted. We’ve also called for public release of the report with minimal redactions that are based only on legitimate and lawful justifications.
Politico reported that Barr said lawmakers will be getting a redacted version of the report, saying Congress does not have a right to view sensitive grand jury information. But Congress must be able to read the full report and underlying documents since it is fundamental to its mission, rooted in the Constitution itself, to carry out oversight of the executive branch in our system of checks and balances. This is essential to determine whether there is a need to investigate if the standard for impeachment of the president has been met. According to multiple media reports, the Mueller report has detailed descriptions of evidence related to alleged obstruction of justice, but it does not allegedly conclude whether that obstruction of justice occurred. On Wednesday, Barr said that he would work with Congress to provide access to redacted information as necessary.
It is our position that any redactions in the publicly released report must be assessed in light of what Barr has conceded is the “extraordinary public interest” in the investigation—regardless of the investigation’s conclusions. At the same time, we must not lose sight of the civil liberties and privacy implications of the report’s disclosure.
News reports suggest that Mueller’s team wrote the report, and in particular its summary, with full awareness of the importance of public disclosure, and therefore anything more than minimal redactions ought to raise red flags. In a recent letter to Congress, Barr laid out four categories of material he would consider redacting. While these considerations are appropriate in theory, they have to be implemented with attention to the public disclosure in mind. Redactions should take place only where confidentiality is absolutely necessary.
Grand jury secrecy
Barr said he will redact any material covered by a federal law that generally prohibits the disclosure of information from grand jury investigations. This law mandates confidentiality for information that “would reveal something about the grand jury’s identity, investigation, or deliberation.” It applies most directly to testimony provided in a grand jury proceeding.
Reports have suggested that much of the information Mueller obtained may have come from voluntary interviews, which are not part of grand jury proceedings, and therefore would not be covered by this rule at all. And while Mueller gathered thousands of documents through grand jury subpoenas, the mere fact that a document was obtained through such a subpoena does not prevent its disclosure. So it is likely that the vast majority of the information in the report will not implicate the grand jury secrecy rule. It is critical that Barr apply this rule strictly, so that it does not inappropriately become a “veil of secrecy.”
Grand jury secrecy serves important interests: It prevents premature disclosure of investigations, encourages witnesses to participate, discourages witness tampering, and protects the reputations of those who are investigated but not charged. The rule has its most urgent application while a grand jury is ongoing; once it is concluded, the need for secrecy diminishes. In this context, the grand jury or juries employed by Mueller are likely no longer operating, so there is less need for confidentiality.
Moreover, several courts have held that there are exceptions to grand jury secrecy in “special circumstances.” Barr’s assertion that material covered by this rule “cannot be made public” is incomplete. As the Supreme Court has said, “disclosure is wholly proper where the ends of justice require it.” Several courts have ruled that in special circumstances — and this is certainly a special circumstance — the court that supervised…
Authored by Sophie Ryan