The growing expectation that special counsel Robert S. Mueller III is nearing the end of his work is pushing the Justice Department toward a potential confrontation with congressional Democrats over the release of any report he produces — and lawmakers will have the edge in any battle, according to former department officials.
The confirmation hearings for William P. Barr to be the next attorney general highlighted the uncertainty surrounding the public’s ability to read Mueller’s conclusions when he finishes his investigation into President Trump and Russian interference in the 2016 election.
Democrats delayed Barr’s committee vote to this week, after they were unhappy he would not pledge to make any Mueller report public and follow the advice of Justice Department ethics officials on whether he should recuse himself from the investigation because of past positions on the matter.
Barr’s nomination is not believed to be in any real jeopardy, but the flare-up points to the burgeoning conflict between senior law enforcement officials and political leaders over the Mueller investigation that has gripped Washington for nearly two years.
Acting attorney general Matthew G. Whitaker said last week that Mueller’s work is “close to being completed,” though he did not offer a specific time frame.
For months, the Justice Department has sparred with congressional Republicans who accused the FBI of letting political favoritism infect their investigations and demanded internal documents to prove or refute those accusations. When Mueller gives his findings to the Justice Department, it will probably be Democrats demanding a full airing of his reasoning and findings.
On Sunday, the president told CBS it was “totally up to the attorney general” to decide what to release.
Justice Department regulations call for Mueller to submit to the attorney general a confidential explanation why he decided to charge certain individuals, as well as who else he investigated and why he decided not to charge those people.
What that document will look like — a short legal summary or a lengthy narrative — is unclear. Trump advisers have also said they intend to challenge the release of any information they consider covered by executive privilege or grand-jury secrecy. For his part, Barr has pledged he will not allow political interference in the process.
Once Mueller files his conclusions, it will be up to the attorney general to decide how much information should be shared with lawmakers and, by extension, the public.
Barr told the Senate last month that while he wanted to share as much information as possible, he was also aware of Justice Department rules that severely restrict the publicizing of evidence gathered in cases where no charges are filed.
Those answers led Sens. Richard Blumenthal (D-Conn.) and Charles E. Grassley (R-Iowa), to introduce a bill that would ensure every special-counsel report would be released directly to Congress and the public.
Congressional aides and Justice Department officials increasingly expect that whenever Mueller finishes his work, there will be battles for access to the underlying investigative documents — and the report itself if it is not released.
Democrats making such demands can point to a very recent and relevant example: In the past year, Republican lawmakers have gained access to a great deal of investigative material about both the 2016 investigation into Hillary Clinton’s use of a private email server and the ongoing Russia inquiry.
The looming fights over Mueller’s report and files are just the latest examples of the conflicts between Congress and the Justice Department over how much politicians should be allowed to peer over the shoulders of FBI agents gathering evidence.
From the investigation over the firing of U.S. attorneys during George W. Bush’s presidency, to the probe of a bungled gun-smuggling operation called Fast and Furious during the Obama administration, the Justice Department has at times bent its rules in the face of congressional demands.
“We always say we don’t do something until we do it, and once you do it, then it’s hard to put the genie back in the bottle,” said Peter Kadzik, a former head of the Office of Legislative Affairs at the Justice Department. Kadzik is part of a group called Law Works supporting legislation that would require the release of the entire Mueller report.
Several current and former law enforcement officials who have worked with Mueller in the past say they expect him to describe in detail what he found about the individuals he charged with crimes but be far more circumspect and limited in discussing those people who are not accused of any crimes.
Those current and former officials, who spoke on the condition of anonymity to be candid, described Mueller as a cautious, by-the-book prosecutor who was typically reticent in his remarks to Congress when he served as FBI director — far different from the more open and accommodating approach taken by his successor, James B. Comey.
Several Justice Department veterans pointed to a letter written in 2000 by then-Assistant Attorney General Robert Raben, at a time when the Clinton administration was sparring with Congress over access to information about investigations.
The letter, which has become something of a road map inside the department for how to handle congressional demands for documents, said it was the department’s policy not to share “confidential information,” including “national security information, materials that are protected by law (such as grand jury information . . .),” or information that could compromise privacy or reveal prosecutorial deliberations. “The department takes very seriously its responsibility to protect the privacy interests of individuals about whom information is developed,” the letter said. The letter’s author said he has little doubt Mueller’s conclusions will become public. “Everything is negotiable,” Raben said. “There can be a lot of fireworks around negotiations — threats and demands — but at the end of the day, Congress will get what it needs on behalf of the American public.”
Raben also said public fights between Congress and the Justice Department often obscure a basic truth — that the two sides are always talking, in part because Justice officials will often seek evidence from Congress. “It’s a two-way street,” he said.
Recent history also argues for a more open sharing of Mueller’s findings.
After Comey closed the Clinton email investigation in July 2016, the FBI began making public the written versions of FBI witness interviews in the case — an almost unheard-of accommodation to congressional demands.
At the time, senior Justice Department officials worried the FBI was providing too much to Congress and setting a bad precedent for future cases. But the department would eventually go much further than Comey — taking the unprecedented step of making public a redacted version of a Foreign Intelligence Surveillance Court order issued as part of the Russia investigation.
“The Justice Department would be hard-pressed to argue ‘we never do this’ when they’ve been doing it for a year,” said Ronald Weich, a former Justice Department official who is the dean of the University of Baltimore law school. “The concept of congressional oversight is baked into the Constitution, so one way or another, it will be made public. Principles sometimes yield to reality.”