Noteworthy informational post in part as follows:
WASHINGTON (NY TIMES) — Investigators for the special
counsel (Robert Mueller) spent months trying to get answers from Trump re:
(1) What he knew about a meeting between senior
campaign aides and Russians;
(2) About changes to the Republican Party
platform making it more Russia-friendly;
(3) About his associates’ outreach to WikiLeaks
as it prepared to publish Democratic emails stolen by Russian hackers.
Now AG Barr wants to possibly hide answers to
those imperatives as well as redact what he wants to “protect Trump” (at least
in my view). So, what areas can protected and what needs to be
redacted (these are the five main categories):
(1) Grand jury information: Barr plans to black out is secret grand jury
information. A federal rule of criminal procedure generally forbids
disclosure of such material, like citing a witness’s testimony before the
jury or a document obtained with a grand jury subpoena.
But, for the investigation into whether Trump
obstructed justice, the special counsel gathered information from witnesses
primarily through FBI interviews and NOT Grand Jury testimony (lawyers familiar
with the inquiry said). Barr also could share grand jury information with
Congress if a judge issues an order permitting it, as happened in 1974 during
the Watergate scandal. However, it is not clear whether the Trump
administration’s DOJ would consent to that, or instead fight any request by
lawmakers to see the grand jury material through the courts even all the way to
the USSC. Nor is it clear that such a ruling would even extend to letting the
public see that material.
It also is not clear whether a key difference
from 1974, the House Judiciary already opened impeachment proceedings against
Nixon, but none are pending against Trump, would now change that outcome.
FYI: The DC
Court of Appeals April 5th, but in an unrelated case, adopted a
narrow reading of when courts may authorize the disclosure of grand-jury information
and criticized the legal basis for the Watergate precedent, but stopped short of overturning it.
(2) Classified information (I believe common sense we all can agree on): Barr
has identified for redaction “…material the intelligence community identifies
as potentially compromising sensitive sources and methods.”
(3) Current investigations (on-going and is common sense as well):
Barr has said will be off limits to Congress is “material that could affect
other ongoing matters, including those that the special counsel has referred to
other department offices.”
In the course of his investigation, Mr. Mueller
uncovered information about potential crimes that fell outside his core mandate
and handed that evidence to other federal prosecutors. The SDNY, for example,
handled the prosecution of Michael Cohen, Trump’s former lawyer, for campaign
finance and other crimes. That district is also now looking at the Trump
inauguration committee’s finances, aspects of which the special counsel’s
office previously scrutinized.
(4) Peripheral people: The fourth category Barr has said he will redact
is “information that would unduly infringe on the personal privacy and
reputational interests of peripheral third parties.”
The DOJ traditionally does not make public
unflattering information about people whom prosecutors scrutinized but decided
not to charge with a crime. By focusing on “peripheral” people, Barr has
indicated that some people are so central to the investigation.
Presumably that includes Trump, and that Barr
may make an exception and allow more abundant material to go to Congress and
become public. But much may depend on his decisions about who counts as central
and who counts as a bit player.
(5) Privileged information: There are several types of privilege that could
come into play. One is executive privilege, a power of presidents to keep
secret from Congress certain internal executive branch information, like
communications involving the president or his close advisers and, sometimes,
internal agency deliberations. Another is attorney-client privilege, the power
to keep secret a client’s discussions with his lawyer. Trump
permitted his aides and legal advisers who might fall under one or both of
those privileges, like the former White House counsel Donald McGahn, to speak
to Mueller’s team. But it is not clear whether that waiver would extend to
sharing information with Congress, and there are few court precedents to define
the limits of that secrecy power.
Added late is this 100% after-the-fact possibility of Trump
invoking executive privilege – in part here from the Washington Post:
Late last month, the AG informed lawmakers by
letter hat he would not submit Mueller’s report to the White House to review
for any material that might be covered by executive privilege that would allow
the president and other senior officials in the executive branch to withhold
some information from Congress, the courts, and the public.
But Barr’s phrasing in his letter is somewhat
ambiguous – Barr wrote:
“Although the President would have the right
to assert privilege over certain parts of the report. He has stated publicly
that he intends to defer to me, and, accordingly, there are no plans to submit
the report to the White House for a privilege review.”
A Justice Department spokeswoman declined to say
whether this means there will be no claims of executive privilege invoked over
any part of Mueller’s report or whether Barr might, at some point, advise Trump
to invoke the privilege over some sections or whether Barr might do so
unilaterally.
That last option seems least likely,
particularly given Barr’s previous legal work. Specifically, a 1989 legal opinion
written by the DOJ Office of Legal Counsel (OLC) reiterated a long-standing DOJ
policy that the AG and others could advise the president on when to invoke the
privilege, but the only one who can invoke it is the president.
That legal opinion title: “Congressional Requests for
Confidential Executive Branch Information.”
It cited a 1982 Reagan memorandum, which
provides “…that executive privilege cannot be asserted without specific
authorization by the President, based on recommendations made to him by the
concerned agency head, the AG, and the Counsel to the President.”
Ironically, the author of that 30-year-old memo
was the head of the OLC at that time: William P. Barr.
Barr told Congress: “Although the president would have the
right to assert privilege over certain parts of the report, he has stated
publicly that he intends to defer to me and, accordingly, there are no plans to
submit the report to the White House for a privilege review.”
But what he meant is ambiguous, and the Justice
Department has declined to provide clarity.
My 2 Cents: The summary of this serious and potentially
explosive constitutional crisis is best summed up by Samuel W. Buell, a Duke
University law professor and former prosecutor, said the House should ask a
judge to intervene in the Grand Jury part saying (and I totally agree with
what Buell says):
“There is going to be an awful lot of
redaction, and the question becomes, ‘What is Congress going to do about that?’
It seems to me that they can and should go to court. It’s not up to the DOJ to
make the final decision about what Congress sees.”
And, I would add: Barr and the DOJ work for the public – and
through our duly-elected Congress they work for us not us for them.
Stay tuned – this is apt to get very nasty and
very ugly as this plot thickens...!!!
Thanks for stopping by.
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