The Mueller report is a federal government work product paid for at the taxpayers’ expense. It belongs to the people of the United States, not to the President and not to the Attorney General. Consequently, it should be turned over in its entirety to the representatives of the people of the United States in Congress.
If the Congress decides to release the report in whole or in part, then so be it. At that point, redaction will have been authorized by the people’s representatives who are properly charged with making such decisions.
The operative precedent in this regard is the Nixon tapes case. In that case, a unanimous Court ruled that the Nixon Oval Office tapes were to be turned over to a District Court that had ordered the tapes be examined in camera before their release. According to the Court, the Richard Nixon administration’s claim of executive privilege did not apply as the recordings were potential evidence in a criminal investigation.
In other words, the conversations or internal communications of the executive branch are not barred from release if they relevant to some type of criminal investigation.
Attorney General’s Authority
To be fair, Attorney General William Barr has acted properly so far in taking his time to consider a response. Even his announced decision not to prosecute is an appropriate exercise of prosecutorial discretion. However, Barr does not have the authority in law to edit the report or refuse to transmit it in its entirety to Congress.
If he does refuse, we can anticipate at least three basic arguments to defend his position: executive privilege, the language of the Independent Counsel Law, and the idea that if the president didn’t commit a crime, there is no reason to release the evidence of what was not a crime.
Executive Privilege
First, let us consider executive privilege. Executive privilege is the principle that intra-branch communications between officials in the executive should be protected from congressional and court discovery.
The rationale for this is that members of the executive branch should have the freedom to discuss any and all policy options without fear of public disclosure. The dampening effect on policy-making of subjecting all internal communications of the executive branch to discovery would be damaging to the decision-making process. This is a principle enshrined in law.
But as noted above, if members of the executive branch are suspected of engaging in a criminal conspiracy, their communications are not protected. Furthermore, while the Court recognizes that executive branch communication can contain sensitive intelligence information and that information can be redacted, the rest of the report can be eligible for public release.
On the principle that a man cannot be judge in his own case, decisions as to what to redact are not up to the executive branch.
Independent Counsel Law
Second, in regard to the Independent Counsel law, the special counsel is obligated to turn over his/her report to the Attorney General upon completion.
The Attorney General then has discretion as to whether the report is released to the public (author’s emphasis). There is no provision in the law nor the appointment letter of the special counsel that authorizes the Attorney General to keep the report secret from Congress.
Absence of Underlying Crime
Finally, as to whether the report should be withheld in the absence of an underlying crime, there is a huge difference between this investigation and a typical criminal matter.
Congress, through its oversight responsibilities, can investigate the conduct of another branch of government, regardless of whether it is a criminal matter or not. After all, Congress has the power of the purse and with that power comes the right and, indeed, the obligation to track how the government’s money is spent.
How a president conducts himself, especially in dealing with a foreign power, is certainly within the purview of Congress’ interest.
Furthermore, should Congress decide to act, impeachment is not a criminal process. It does not follow criminal procedure, nor is it necessary for the president to commit a crime in meaning of the criminal justice system to be subject to impeachment. Therefore, the Congress and particularly the House Judiciary Committee in its capacity to recommend impeachments is certainly within its rights to demand and receive the complete, unredacted Mueller report.