My former Department of Justice colleague, Barry Kowalski, and I have been dismayed by reports that Attorney General William Barr might rely on Justice Department practice to suppress the Mueller report. Barry handled some of the department’s most sensitive matters, including the prosecution of police officers who beat Rodney King and a reinvestigation of the assassination of Dr. Martin Luther King, Jr. We know from our combined 57 years in the Civil Rights Division (CRT) that the division’s practice provides all of the precedent Barr needs to release fully Mueller’s product. Here is our analysis.
Speculation abounds that Special Counsel Robert Mueller will produce a report imminently. Even if he does, it will be a confidential report to Attorney General Barr, who will then decide how much of the substance and supporting material of Mueller’s investigation to release to Congress and the public. During his confirmation testimony, Barr cautioned that the combination of the Special Counsel regulations and DOJ practice of not commenting on individuals who will not be charged substantially limits what he can reveal about the substance of Mueller’s investigation. In fact, the special counsel regulations establish only the minimum that the attorney general must reveal, and DOJ practice fully supports sharing almost all of the contents of the report and supporting material with Congress and the public. The practice of CRT provides ample precedent for the attorney general to release as much information from the Mueller investigation as will serve the public interest.
Many criminal civil rights investigations involve police shootings or racially motivated violence that can tear communities apart. As a result, CRT developed a practice of writing comprehensive memoranda when closing high profile investigations without charges. These publicly available memoranda recognize the importance of assuring affected communities that a thorough investigation has been conducted and has failed to identify sufficient evidence to sustain a prosecution. A familiar example is the 86-page memorandum detailing the investigation into the shooting of Michael Brown in Ferguson, Missouri in August 2014. The shooting sparked civil unrest. The release of the Ferguson report, containing detailed descriptions of witness statements and forensic evidence, showed the community that the federal government had fully investigated. This practice, which has been followed repeatedly in matters involving controversial police shootings, breaks with DOJ’s standard approach of releasing little or no information at the conclusion of an investigation when no criminal charges are brought. The compelling public interest in assuring traumatized communities that justice is being pursued mandates CRT’s more transparent practice.
A second type of investigation also demonstrates CRT’s practice of disseminating the details of investigations to serve the public interest. It involves matters of substantial public interest that traditionally fall within the department’s jurisdiction, but are unlikely to be prosecuted because the statute of limitations has run, participants and witnesses have died, or other factors have intervened. The most prominent example of this type of investigation is the Civil Rights Division’s reinvestigation in 1998 of then-new allegations regarding the assassination of Dr. Martin Luther King, Jr. The Office of Legal Counsel, relying on a 1976 opinion by then-Assistant Attorney General Antonin Scalia authorizing further investigation of the assassination of President Kennedy, concluded that the department had authority “to conduct an investigation the only purpose of which is to ‘detect’ the commission of a federal crime,” regardless of whether prosecution was possible. Relying upon the OLC opinion, the Civil Rights Division investigated and issued a detailed report of its findings.
Additionally, in recent years, Congress has authorized and CRT has investigated unsolved civil rights matters occurring before 1980. CRT has issued detailed reports to Congress and the public on over 100 of these cold cases. Because of the age of these cases, there is little expectation that prosecutions will ensue. The investigations are designed to bring some closure to families and others personally affected by the crimes. They also serve the public’s need to know that these events have been thoroughly investigated and to understand as much as possible what happened.
The OLC opinions undercut Barr’s suggestion that the failure to pursue criminal charges against President Trump and his associates will prevent disclosure of details of the investigation. The Kennedy and King assassination reinvestigations demonstrate that it is appropriate for DOJ to investigate to allay significant public concerns and to report details of the investigation to the public, even though criminal prosecution may be impossible. The public interest in disclosure of possibly illegal conduct by a sitting president is at least as great as the public interest legitimately served by disclosures made following CRT investigations over the years.
Attorney General Barr, therefore, has longstanding Department of Justice policy and practice to draw on in sharing the details of Mueller’s investigation. The discretion rests entirely with him to do so. Hurdles remain regarding the disclosure of grand jury material, classified information, and executive privilege, but they are surmountable.
Although grand jury material is protected from disclosure by Federal Rule of Criminal Procedure 6(e), courts approved its release to Congress for impeachment purposes during Watergate and the impeachments of President Clinton and Judge Alcee Hastings. It has been and can be redacted from a public report. Classified information is routinely shared with Congress and can also be redacted from any public version of a report. United States v. Nixon provides strong authority for overcoming claims of executive privilege. The Supreme Court held that executive privilege could not block production of Watergate tapes in response to a criminal trial subpoena. The compelling interest in producing evidence that may be relevant to impeach a president should also overcome the privilege.
Much of the country believes Donald Trump has committed crimes and impeachable acts, while his core supporters accept his claim that the special counsel investigation is a witch hunt. Under these circumstances, Attorney General Barr must elevate the public interest over any reluctance to discuss matters that will not be prosecuted. Public interest in police shootings, civil rights era crimes, and assassination investigations warrants broad disclosure of information to bolster public confidence that DOJ reached proper conclusions following thorough investigation. Similarly, the evidence addressing concerns that the President, his campaign, or administration have conspired with a hostile foreign power or obstructed investigation of that conduct also merits broad public disclosure. According to DOJ practice, Barr has discretion to reveal the details of Mueller’s investigation. He should exercise it.