William Barr will have a decision to make if the Senate confirms him as President Trump’s new attorney general: whether to release special counsel Robert Mueller’s final report on his investigation into Trump’s alleged collusion with Russia.
During his confirmation hearing in the Senate Judiciary Committee, Democrats this week pressed Barr to release the full report. But Barr left them hanging on that question, and he said only that he would “provide as much transparency as I can consistent with the law.”
Barr has some discretion. Under current law and regulation, the attorney general usually gets a report from the special counsel and then gives his own version of the report to Congress.
On Tuesday, Barr said his report could be a prosecutive memo or a declination memo.
“The rules I think say the special counsel will prepare a summary report on any prosecutive or declination decisions, and that shall be confidential and be treated as any other declination or prosecutive material within the department,” Barr said to Sen. Mazie Hirono, D-Hawaii.
If it is a declination memo, which is a memo written by Justice Department officials when they decline to charge someone, it is likely that the bulk of it won’t be released, given what Barr said about former FBI Director James Comey.
[Related: GOP senator: Full Mueller report should go public]
Barr said Comey violated FBI norms when he announced in July 2016 that he would not be charging former Secretary of State Hillary Clinton. That decision by the FBI would have been revealed in a declination memo, which would have not been made public.
Barr echoed sentiments of those inside and outside the FBI when he said he did not approve of Comey’s decision.
“If you’re not going to indict someone, you don’t stand up there and unload negative information about the person. That’s not the way the department does business,” Barr said Tuesday.
A prosecutive memo describes why someone was charged or why that individual should be charged. If it is the former, it is not usually made public either, until the indictment is unsealed in federal court.
But another regulation says Barr could release Mueller’s memo if he has good reasons. A section of 28 CFR 600.9 says 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.”
Democrats this week pressed Barr to release the full report, but some said Barr’s answer that he would follow Justice Department regulations may not mean that much since Barr is free to make a specific decision once he arrives at the department.
According to Michael Zeldin, a CNN legal analyst and former assistant to Mueller, there really is no way to know if Barr’s promise to follow the Justice Department’s regulations actually has “any practical meaning.”
But Joshua Geltzer, executive director of the Institute for Constitutional Advocacy and Protection, wrote in a blog post Wednesday that the public interest exemption should let Barr release the report.
“Simply put, the next attorney general does have that discretion; and sharing the special counsel’s findings, at least in some form, with an American public hungry for them seems a sound exercise of discretion indeed,” said Geltzer, who is also a former Justice Department official.
Last month, NPR/“PBS NewsHouse”/Marist released a poll that found that roughly 75 percent of U.S. adults believed the entire Mueller report should be made public. Two-thirds of Republicans agreed with that statement, and nine in 10 Democrats agreed, according to the poll.
