The Catch-22 of the Mueller report

With the final report of special counsel Robert S. Mueller III due shortly, many Americans (Democrats in Congress among them) are worried that much of it, perhaps even all of it, will not be released to the public. That’s why Deputy Attorney General Rod Rosenstein caused something of a stir Monday when he told participants at a Washington conference that, as a rule, the Department of Justice should not be releasing investigative findings about individuals against whom the agency is not filing criminal charges.

"The guidance I always gave my prosecutors and the agents that I worked with during my tenure on the front lines of law enforcement were if we aren't prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens,” said the former U.S. Attorney for Maryland during his talk at the Center for Strategic and International Studies in Washington.


Mr. Rosenstein wasn’t speaking specifically about the Mueller report, but it’s not hard to connect the dots. At one point, he observed that the non-disclosure practice was a principle "that we'll be discussing nationally."

Now, before anyone gets on their high horse, we believe that, in general, Mr. Rosenstein is right. If the government investigates someone and finds them innocent, there should be no obligation that the investigative material be made public. Of course, we also would support another common Justice Department practice — not publicly confirming nor denying that someone is the subject of an investigation while that inquiry is going on, but in high-profile cases, that doesn’t happen too often, does it? The whole business has echoes of former FBI Director James Comey’s extraordinary public discussion of the agency’s findings related to Hillary Clinton’s use of a private email server while secretary of state, which Mr. Rosenstein cited as a reason to fire him in a memo he prepared for President Donald Trump.


The problem with the Mueller report is that, as top justice officials have already confirmed, the special counsel does not have authority to indict President Trump. It’s the Catch-22 of the Mueller report. How can the rule against disclosure of information related to someone the Justice Department does not intend to indict apply to someone the department believes it legally cannot indict? And how can the one entity that can actually hold Mr. Trump accountable — the U.S. Congress — make any decision about whether to impeach if they are not presented with the facts?

That’s why House Intelligence Committee Chairman Adam Schiff is already talking about filing a lawsuit to compel Mr. Mueller to testify and for the full report to be shared with the Congress. While it’s clear that existing statute gives Attorney General William P. Barr latitude to decide what findings to release to the public, the whole system of checks and balances — in particular, the opportunity to hold the president accountable — does not work if Congress is bypassed.

Make no mistake, this is no ordinary criminal investigation. It’s been an inquiry into Russian interference in the 2016 election which represented an attack on the very foundation of our democracy. The general public could not have a greater stake. Mr. Barr is in an almost impossible situation if he chooses to hold any substantial portion of the findings back. How can Americans be confident that the White House has been policed if only presidential appointees and their minions are knowledgeable about the findings? Kenneth Starr did not indict President Bill Clinton either, but his full report was presented to members of Congress (and became a best-seller).

Finally, let’s not act like investigative results never get leaked to the public — or, in the case of Ms. Clinton, deliberately disclosed by Mr. Comey amid an election in a manner that may well have doomed her candidacy. Ms. Clinton was never charged with a crime, by the way. Nor should we pretend that materials from various federal investigations haven’t been routinely shared with Republican-controlled committees of Congress during the last two years. Exceptions to the non-disclosure rule are made all the time, a point Chairman Schiff has made vigorously in recent days, and which supports a potential lawsuit.

The precedent is clear. In routine matters, confidentiality is a fine principle, commendable even. But in this case, it is unworkable. The same transparency that Republicans supported for the Clinton probes must be maintained for the Mueller report or this glaring hypocrisy will cause Americans to distrust its secret findings and question whether President Trump and perhaps others in his inner circle can ever be held accountable.