Over the past few weeks, you have probably been bombarded by news of the Special Counsel’s Report on the Investigation into Russian Interference in the 2016 Presidential Election. Special Counsel Robert Mueller's investigation ended and on April 18th, the Report was released to the public by the Attorney General. But, it wasn't the entire report. This blog is not about the substantive aspects of the Report but instead focuses on the process and jurisdictional authority of the different branches of our federal government under such circumstances.
Let's begin by trying to understand what precisely is the role of an Attorney General in the case of a special counsel. According to the Department of Justice (DOJ) regulations, an Attorney General has the authority to appoint a special counsel when she or he has determined that a criminal investigation is warranted. This special counsel launches an investigation under the guidance of the Attorney General and will eventually produce and report of findings and recommendations. The question as to how transparent this entire process is required to be is what is currently being debated among many.
So, what aspects of this process do need to be made public? The answer is, not much! To begin, Attorney General Barr (and therefore any AG) is not required to make a special counsel’s report public. In fact, the Attorney General is only required to give the Chairman and Ranking Member of the Judiciary Committees of both Houses a brief summary of findings from the report. And, it is up to the discretion of the Attorney General as to whether or not these summaries are then shared with the public. It appears, therefore, that requirements regarding transparency are rather limited.
If this is the case, then why is the news reporting discontent among Members of Congress who believes they are entitled to access the entire report and recommendations? Probably because it is up to Congress to serve as the jury that will determine the President's culpability. To that end, Congress must have access to enough information to be able to make an informed decision. How do they get that information? Through their Constitutional power to subpoena members of the special counsel. Confused? You're not alone.
Let's use the Mueller investigation as an actual illustration of these various actions. In this case, although the DOJ offered to allow Members of Congress to view a less redacted version of the Report (the initial report was highly redacted), some Congressional Members remained unsatisfied. As a result, the Chairman of the House Judiciary Committee issued a subpoena to the Justice Department to acquire the full Report. Additionally, the House Speaker and the Senate Minority Leader are calling on the Special Counsel and the Attorney General to testify before Congress. Thus, powers exist to both limit access to information as well as to overcome those limitations. Confusing though it may be, it is all part of the balance of powers as articulated by our Constitution.
So what happens next? For the Mueller Report, we will all have to wait and see what Congress does with the information that they obtain. This will be a long, complicated, confusing and contentious process that will take months and could even take years. Patience will be required by everyone as this process continues to unfold and a sense of security in knowing that eventually, the remarkable balance of power that our Constitution designed will bring about a just conclusion.
*Contributing Author: Andrew Landicho