How Mueller’s Report Lands in Court: Congress, FOIAs and Defendants
Robert Mueller. Photo: White House/Pete Souza
With growing demand for the public release of special counsel Robert Mueller III’s findings, it could be the courts—not Attorney General William Barr—that have the final say over the disclosure.
The efforts to wrest Mueller’s findings into public view could play out on three separate legal tracks, beginning with a push by congressional Democrats to subpoena the Justice Department. The other two prongs could involve open records lawsuits and defendants involved in the few remaining special counsel cases still in court.
Democratic lawmakers, who have long called for special counsel Robert Mueller III’s findings to be publicly released, began their effort Monday with the heads of six congressional committees demanding the release of Mueller’s report and its underlying records.
But any push from House Democrats to get Mueller’s findings, and other records or evidence uncovered in his two-year inquiry, could face resistance from the Trump administration—potentially plunging the two branches into a legal tussle for the courts to resolve.
Likely to be central to any effort from Congress is House Judiciary Chairman Jerrold Nadler, who has long vowed to subpoena the Justice Department for the report. He said Sunday he would “absolutely” consider taking that fight up to the U.S. Supreme Court.
If the New York Democrat does subpoena for Mueller’s report, the Trump administration could assert executive privilege over some of those documents. If it does, the House could sue to compel the attorney general to turn over the sensitive information.
The president has said he would support the release of Mueller’s findings. The decision is “up to the attorney general. Wouldn’t bother me at all,” Trump said Monday.
Sarah Sanders, the White House press secretary, followed up on that point: “We want to make sure we’re protecting the office of the presidency. We have to look at things like executive privilege, we have to look at protecting sources and methods for the intelligence community.”
She said Barr “will make that decision when he’s ready.”
Barr’s summary of Mueller’s findings won’t be his final word. In his Sunday letter to lawmakers, Barr indicated he could share more information about Mueller’s findings with Congress, though he said he would withhold any sensitive information related to grand jury proceedings.
A congressional lawsuit could take time to develop, said Andrew Wright, a former associate White House counsel during the Obama administration. Congress would likely first seek a contempt vote against noncompliant officials before seeking a court intervention, Wright said.
There could also be a more expedient path. Former House general counsel and Gibson, Dunn & Crutcher partner Tom Hungar said Democrats could make a direct appeal to U.S. District Judge Beryl Howell, who is overseeing the grand jury convened for the Russia probe, and request that she order the Justice Department to provide Congress with records.
In either event, the interbranch dispute would delve into questions around whether the release of the purportedly sensitive information would harm an investigation or imperil a witness, among other law enforcement and national security considerations.
Any decision by Congress to bring a lawsuit, too, would depend on negotiations between the Justice Department and congressional lawmakers. Congress might be able to reach a middle ground with the Justice Department on disclosures, heading off litigation.
FOIA and Discovery Fights
The fight over the release of Mueller’s report could play out on other fronts, including through open records lawsuits and litigation involving current special counsel defendants.
Within an hour of Barr notifying Congress about the conclusion of Meuller’s probe Friday, the nonprofit group Electronic Privacy Information Center filed a federal lawsuit demanding the release of the report.
And while the special counsel’s probe has concluded, litigation continues against a number of defendants in federal courts. Legal experts said the defendants could use their cases to attempt to peer into Mueller’s findings.
A lawyer for Roger Stone, a longtime Trump ally indicted in the special counsel investigation, said Monday he was curious to see what, if anything, Mueller’s final report might have said about his client. He noted Stone’s legal team didn’t plan any “immediate” steps to that effect.
Attorneys could cite federal rules on discovery or make Brady-related requests for potentially exculpatory evidence for their clients. But white-collar lawyers said any attempt to peer into Mueller’s findings might fall short of guaranteeing the report’s public release.
Shanlon Wu, a white-collar attorney who previously represented former Trump deputy campaign chair Rick Gates, said lawyers could craft a colorable argument that they would need to see Mueller’s report because they could learn information that would be relevant to their defense.
Wu said a judge might permit lawyers to review some records related to their client, but also issue a protective order tied to that information. “I don’t think it would lead to public release,” he said.
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