Mueller report redactions: How Congress will make sure we find out everything important

Chris Truax

The Mueller report that is released to the public this week will not be the final version, not by a long shot. 

Attorney General William Barr has removed four kinds of material from the report. But Congress is a separate branch of government, with its own constitutional duties and powers of investigation. By issuing a formal subpoena, it can bypass many of the laws and regulations that bind the attorney general, and insist on access to much of the information Barr holds back.

Here are the four categories of redacted material and how Congress could get to see them:

► Grand jury information. Grand jury proceedings are usually kept secret unless an investigation results in an indictment. But there are several exceptions. The one Congress is most likely to use allows the court to unseal grand jury information "preliminarily to or in connection with a judicial proceeding."

It is well-established that an impeachment proceeding is a "judicial proceeding." And it's hard to argue that a congressional investigation of potential wrongdoing by the president, especially if it's something like obstructing justice or dodgy dealings with Russians, isn't a necessary preliminary to what might become an impeachment proceeding.

There's a very solid precedent for this, courtesy of President Richard Nixon. In Haldeman v. Sirica, the court endorsed exactly this reasoning when it ordered the release of grand jury information to Congress.The House Judiciary Committee reviewed the information privately and used it as a road map for its 1974 impeachment proceedings. It became public only last October. 

It's up to a court, not Barr or the Department of Justice, to decide whether secrecy ought to be waived in a particular case. Congress would likely file such an application within a week of receiving the redacted report.

► National security. Information that could reveal intelligence sources and methods is the most sensitive category in the report, but it is also the easiest for Congress to access. Congress regularly reviews extremely sensitive intelligence data and there are statutes and procedures in place to allow it to do so. There is even a special exemption allowing this information to be shared with Congress on the list of exceptions to grand jury secrecy.

In the most sensitive cases, the intelligence is shared only with the Gang of Eight — the top Democrats and Republicans (chairs and ranking members) on the House and Senate Intelligence committees, as well as the House and Senate majority and minority leaders. This helps ensure that everything in the Mueller report that should be made public will be made public.

► Ongoing criminal investigations. This is where Barr and Congress are most likely to be at loggerheads. While the DOJ has a strong interest in protecting ongoing investigations, Congress has an equally strong interest in seeing the full picture of special counsel Robert Mueller's findings. There is an element of "hiding the ball" in saying Mueller won't be filing any more indictments, yet redacting large quantities of information regarding criminal investigations that Mueller has passed off to others. Congress may well decide that transparency is more important than the risk of compromising a potential prosecution.

Read more commentary:

5 lingering questions about Mueller report summary

Skimpy Barr letter sets up constitutional battle royal to force full Mueller report release

What Robert Mueller's lack of new indictments could mean for Donald Trump

Congress has an absolute right to conduct oversight investigations even if they conflict with a criminal investigation or prosecution. While the DOJ regularly asserts an "ongoing investigation" privilege to protect its own files and records from a congressional subpoena, the extent of that privilege has never been fully determined by a court. Instead, congressional demands for information that might impact a criminal investigation are virtually always resolved through intense negotiations between DOJ officials and the committee conducting the investigation.

Sometimes the compromise is a confidential briefing. Sometimes Congress agrees to keep the material being turned over confidential. Sometimes the DOJ relents and gives Congress all or part of the information it requested. It will likely work the same way here. The Barr version of the Mueller report isn't the end of a process. It's the opening bid in a negotiation. Expect Congress to eventually have access to a lot more information on other investigations than Barr is currently making available.

► Third party privacy rights. DOJ policy is to not reveal information about people who aren't being prosecuted in order to protect their privacy rights. Barr has said he'll be redacting information regarding "peripheral" third parties, and that he will not redact information to protect President Donald Trump's reputation. But these are subjective judgments. If Barr strictly followed the policy, the report would consist of nothing but the indictments Mueller had already filed and, since no charges are being filed, the section on obstruction of justice would be blank.

It's unlikely a court would allow the DOJ to resist a congressional subpoena on the grounds that a third party might find it embarrassing if the information were provided to Congress. While it is true that Congress can't compel the production of evidence  without a proper purpose, looking into potential presidential misconduct is about as proper as it gets. There's even a statute making it clear that potential embarrassment is not a valid reason for refusing to testify before Congress. But, much like concerns about information that might disrupt an ongoing criminal investigation, both Congress and the DOJ have a shared interest in handling this information correctly. So expect this to be another area of negotiation.

Hanging over all this is Congress' inherent power to enforce its own subpoenas. While Congress typically seeks assistance from a court, it doesn't have to. The power hasn't been used since 1934, but Congress can find people (even an attorney general) in contempt, and have them arrested and held until they comply with a congressional subpoena. As one court put it, this would be "an unseemly constitutional confrontation  that should be avoided." So let's hope it doesn't come to that.

Finally, there is the question of what additional information the public might eventually see. The short answer is that, under the Speech and Debate clause of the Constitution, congressional committees and even individual legislators have absolute authority to place any information into the Congressional Record that they see fit. In one of the Pentagon Papers cases, Alaska Sen. Mike Gravel read extensively from classified material and then entered more than 4,000 pages of the Pentagon Papers into the record.

As a practical matter, Congress seldom makes use of this privilege and usually respects protections for classified and otherwise sensitive material. But if Congress does discover something in all this redacted material — even highly classified material — that it believes the public needs to know, it will be published. It can’t be covered up.

The bottom line: If the unredacted Mueller report is made available for congressional review, we can be confident there will be no hidden smoking gun. That’s probably the best single argument for releasing the entire report to Congress, even if it can't be made public.

Chris Truax, an appellate lawer in San Diego, is on the legal advisory board of Republicans for the Rule of Law. 

You can read diverse opinions from our Board of Contributors and other writers on the Opinion front page, on Twitter @usatodayopinion and in our daily Opinion newsletter. To respond to a column, submit a comment to letters@usatoday.com.

This article originally appeared on USA TODAY: Mueller report redactions: How Congress will make sure we find out everything important