Trump Constitutional Crisis: Day 7


As I said in my last post, I don’t believe that AG Barr intends to turn over the Mueller Report, at least not without heavy redaction that will obfuscate Mueller’s findings, or a long delay that will allow the Administration time to try to discredit the Report.

It is now 7 days since AG Barr notified Congress he was in receipt of the Mueller Report and, unsolicited, ‘summarized’ the ‘top line conclusions’. He still has not turned any version of the Report over. In that original notification, or “summary”, Barr identified two categories of information he intended to scrub, protected grand jury materials and information relating to other on-going matters, including those referred out by the Special Counsel.

AG Barr has now sent a second letter to the Congress laying out a several-week timetable for it’s release. Rep. Nadler, Chairman of the House Intelligence Committee, responded that Congress’ original deadline of April 2nd for production of the entire unredacted report remains in force, and blasting AG Barr’s effort to inject himself into the Special Counsel investigation with his “summary,” in which he took it upon himself to decide that obstruction charges against the President are not warranted by the whole 400 page Report.

In his latest letter, Barr indicated that the delay in the Report’s release is down to his efforts to redact the Report of what he considers restricted information before handing it to Congress. Now Barr has laid out four types of information he intends to scrub: material from any Grand Jury proceeding, material affecting other on-going cases (the two types indicated in his first letter), and classified information which would tend to reveal sources and methods, and (I can’t make this shit up…) “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.”

The list of information to be redacted continues to grow with each Barr letter to Congress! Now he wants to scrub, before anyone else [including Congress!] can ever see it, what in his his sole judgement are ‘unduly’ infringing upon ‘personal privacy and ‘reputational interests’ of ‘peripheral third parties’. Talk about a massive and unaccountable exception!

The first three types of information are almost as ridiculous as the last. Rep. Schiff’s Intelligence Committee is DESIGNED to review classified information that may reveal sources and methods – it’s literally their jobs! Grand Jury material protected by FRCP 6(e) can be released to Congress by the judge supervising the Jury, which is what was done during Watergate. Rep. Nadler’s Judiciary Committee also does oversight of the Justice Department and regularly handles information related to open criminal matters without an issue. There is no reason why Barr needs to spend weeks scrubbing information the Congress is designed to and ready to handle with due care. As to Grand Jury material, Barr continues to refuse to go to any judge involved and get the needed clearance to release to Congress. Why? Well, that would make things a bit too easy, wouldn’t it?

Barr seeks to merely delay release with these redaction categories: Mueller’s team would have already noted in the Report itself what information is based on secret Grand Jury materials, and what might impacts other open cases (especially those the Special Counsel referred out), as well as creating a classified annex to the report to easily separate classified material from unclassified. All that work has already been done; there is no need to Barr to do it again.

As to the last category of ‘infringing on personal privacy of third parties’, it’s absurd on its face that Barr would even try to inject such a poison pill into the process that allows him to exercise sole judgement over what is released. It’s wholly without any legal basis. And that’s the point. He has given himself carte blanche to delete any part of the Report!

So that where the crisis stands: Congress wants the whole, unredacted report along with all underlying evidence; Barr wants to have free reign to only produce what he, in his sole judgement, decides to hand over. Barr, the handpicked Attorney General who auditioned for the job with a 19 page memo basically arguing that the President is above the law, wants to decide what he’s going to hand over of the Report that may well embarass or implicate his boss. This is why we HAD a Special Counsel in the first place: to prevent such a blatant appearance of conflict of interest!

What happens next? Who knows? I can make a few guesses. Barr will surely refuse to honor the Congress’ demand for the full, unredacted report by April 2nd – he’s already notified Congress that they can go pound sand in his second letter, and suggested a mid-April release date instead. When Congress seeks and obtains a subpoena for the whole Report, Barr may seek declaratory relief and tie the subpoena up in court as long as he can, which could be further weeks or even months. In doing so, Barr hopes to give the Administration time to formulate a strategy to further delay release, degrade the integrity of the Report with other redactions, or change facts on the ground prior to release. Or the Administration just intends to continue to make conciliatory noises in public, while completely stone-walling Congress, as they have done for the past 7 days.

Perhaps Barr will just roll over and produce the Report on April 2nd as Congress has demanded, and this whole thing will be over. I will be dead wrong, but I’ll be glad. But I fear and expect a long, nasty, and bare-knuckle fight to keep the Report away from Congress and public who paid for it. I’m somewhat comforted that Chairman Schiff has indicated that this is an issue that is worth “going to the mat on.” For now, the crisis continues, and I will continue to count down and update you until the full Report is revealed.