Do we want or need to know what is in the 300-plus pages of the report that Special Counsel Robert S. Mueller III filed with the Justice Department on March 22? Do its conclusions affect us, and if so, how? After all, just two days later, we were able to read the four-page summary released by U.S. Attorney General William S. Barr. Is that enough for us, the American public, or do we need to see the whole report?
Barr basically revealed three overall elements of the report: 1) The Russian government did in fact meddle in the 2016 presidential election; 2) The Trump campaign, including the candidate himself, did not conspire with the Russians to ensure Trump’s election; and 3) The evidence concerning Donald Trump, as candidate and president, related to obstruction of justice did not merit a prosecutorial judgment.
On this last count, the summary quoted this extraordinary statement from the Mueller report: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
What an extraordinary announcement about the conduct of a sitting president of the United States. That statement alone should make every American want to read all 300-plus pages, if only to learn why Mueller concluded that he declined to exonerate Trump.
The problem is that parts of the report cannot be legally made public. It is against federal law, and I agree that this is the correct stance, that information regarding classified information and national security falls under the state secrets privilege. Grand jury investigations and all ongoing investigations by law enforcement also may not be made public.
Finally, negative information about a person suspected of a federal crime but not indicted, for whatever reason the Justice Department decides, should not be publicly revealed. (This is why, for example, so many former federal prosecutors and law enforcement officers were so angry after James Comey, the then-director of the FBI, publicly condemned Hillary Clinton and her private email server but decided not to prosecute her.)
The question left open, given these constraints, is whether the American people can trust the attorney general “to do the right thing” and release as much of the report as possible. First, many former Justice Department officials, including those who worked with him when he served as Attorney General under President George H.W. Bush, have argued that he is “a lawyer’s lawyer”: someone who is smart, competent, independent, and able. He will, they argue, release as much as he possibly can, though it may take more time to clear the report of the items listed above. Indeed, Barr has promised to release what he can by mid-April.
On the other hand, there hangs over him the June 2018 19-page unsolicited memorandum addressed to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, giving his reasons why President Trump and presidents in general may not be indicted or prosecuted for obstruction of justice.
As a lawyer’s brief, the memo was competent and thorough. But: was one of its principal goals to demonstrate how crucial his advice would be when the Mueller report was completed?
When I first read the memo, it reminded me of “The Prince” by Niccolò Machiavelli, the great Renaissance statesman, diplomat, and writer. In 1513, he sent his little pamphlet to Lorenzo de Medici when he wanted to persuade Lorenzo to engage him as a top advisor.
Barr’s memo concluded pretty much what he placed in his four-page summary of the Mueller report: Presidents are immune from charges of obstruction. In my mind, it certainly helped lead to Barr’s nomination and confirmation as attorney general this past February. (Machiavelli did not get the job.)
We are left with two images of William S. Barr: the man of integrity and professionalism versus the man wanting to support Trump from the inside. Let’s hope it is the first of these that fully develops in the next few weeks.
Jack Fruchtman, a seasonal Aquinnah resident, teaches constitutional law and politics at Maryland’s Towson University.