Who Will See the Mueller Report? DOJ Regulations and Next Steps Unclear

Five questions with former federal prosecutor Berit Berger ’02, executive director of the Center for the Advancement of Public Integrity.


Berit BergerThe scope and public release of Special Counsel Robert S. Mueller’s much-anticipated report on Russia’s efforts to interfere in the 2016 presidential election may be constrained by Department of Justice regulations that provide only limited guidance. Mueller is only the second special counsel appointed under the current rules written in 1999 by the Department of Justice, and there is little precedent for the distribution and use of the completed report.

Berit Berger, executive director of the Center for the Advancement of Public Integrity and a former federal prosecutor, has been watching the probe closely and providing legal commentary and analysis to national and international news media covering the investigation.

 

We know that Department of Justice regulations call for Mueller’s office to submit a “confidential” report to the U.S. Attorney General upon completion of his work. Is Attorney General William Barr required by law to release it publicly?

The precise contours of Mueller’s investigation may never be revealed publicly. The federal regulations (28 CFR § 600.8) defining the rules and procedures for the special counsel require that Mueller prepare “a confidential report explaining the prosecution or declination decisions” at the end of his investigation. This report will be submitted to U.S. Attorney General William Barr. The report in its entirety will likely not be made public, so people should not expect to get a report like what we saw from Ken Starr or the 9/11 Commission.

 

Is Barr required to disclose the report’s finding to members of Congress?

The federal regulations (28 CFR § 600.9) require Barr to give the chairman and ranking minority member of the judiciary committees of each house of Congress a “brief notification” outlining the special counsel’s actions and the reasons for them. The term “brief notification” is about as vague as it sounds, so Barr will ultimately have a good deal of discretion about how much information to make public.

The confidential nature of the report is broad, and confidential sections could include classified information, materials obtained by the grand jury, or information about people who have not been charged.

 

Could Congress subpoena the full report and would they then be entitled to release it?

The short answer is maybe. Much of the material included in Mueller’s report will likely be evidence gathered by the grand juries that were convened in connection with the special counsel’s investigations. Grand jury proceedings are secret and Rule 6(e) of the Federal Rules of Criminal Procedure forbids disclosure of matters occurring before the grand jury, which includes the testimony of witnesses, in all but a few limited circumstances. Disclosure to Congress is not one of those listed circumstances.

A congressional subpoena of the report would likely be challenged and we could certainly expect a legal battle over the disclosure of grand jury material to Congress.     

 

What sort of legal challenge?

There is precedent for a court to permit the disclosure of grand jury materials in “special circumstances.”[1] This happened in 2011 when a court allowed a transcript of Richard Nixon’s grand jury testimony from Watergate to be disclosed. Courts have also allowed grand jury materials to be disclosed to Congress in connection with impeachment proceedings, both during Watergate and in connection with impeachment of federal judges, so if Mueller’s report contains evidence that could be relevant for impeachment proceedings, that could be one basis Congress could use to argue for its release.  

 

Once Mueller delivers the report, might other law enforcement agencies continue the process of investigation and bring additional charges?

The conclusion of the probe is by no means the end of the road for investigations into the president and those in his orbit. First, there will likely be aspects that are not fully concluded by the time Mueller files his report. We know, for example, that the Roger Stone case is being prosecuted by both the special counsel’s office and the U.S. Attorney’s Office for the District of Columbia. These investigations may ultimately deal with ancillary issues, and likely will not focus on the central question of Russian collusion, but an ongoing investigation is a living force and it’s impossible to predict where and when it will conclude.

Additionally, the multiple investigations underway by other offices will not end with the delivery of the Mueller report. Significantly, the Southern District of New York (SDNY) and the NY Attorney General’s Office are investigating the Trump Organization, the Trump Foundation, and the inauguration. These investigations will continue and, as many have opined, may ultimately pose a more serious threat to the president and his family members than Mueller’s team ever did.  The prosecutors at the SDNY have built a reputation for independence and a willingness to charge difficult cases. If there is corruption to be charged, the SDNY will not hesitate to bring a case because of political considerations.

[1] In re Petition of Craig, 131 F.3d 99, 102 (2d Cir. 1997).

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Published on March 7, 2019

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