With the recent vote to hold William Barr in contempt of congress, I have one main question. Why can't Robert Mueller just give the report to congress? It's obvious that I don't understand the full scope of what's going on, but in my view, congress is...congress. How do they not have the right to demand information from the Justice Department when they have the responsibility to handle impeachment?
2 Answers
Mueller was appointed under Title 28 of the Code of Federal Regulations, part 600, which provides at § 600.8(c), Closing documentation, that
At the conclusion of the Special Counsel's work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.
The use of the word "confidential," read along with § 600.9, indicates clearly that the disclosure of the report lies in the discretion of the Attorney General. Section 600.9 says:
§ 600.9 Notification and reports by the Attorney General.
(a) The Attorney General will notify the Chairman and Ranking Minority Member of the Judiciary Committees of each House of Congress, with an explanation for each action -
(1) Upon appointing a Special Counsel;
(2) Upon removing any Special Counsel; and
(3) Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.
(b) The notification requirement in paragraph (a)(1) of this section may be tolled by the Attorney General upon a finding that legitimate investigative or privacy concerns require confidentiality. At such time as confidentiality is no longer needed, the notification will be provided.
(c) The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.
This is basically a separation of powers issue. Mueller was operating under the authority of the head of the Justice Department, which is under the executive branch of government. Mueller is not authorized to give copies to the public, give it to Congress, to the Supreme Court, the media, or anyone else, other than his superior. The investigation was originally authorized by Deputy Attorney General Rod Rosenstein – if Congress had voted to authorize an investigation headed up by Mueller or anyone else, they might have done so.
This does not mean that Congress cannot demand a copy of the report: it simply means that Congress has to make the demand of the AG. Then the executive branch can resist the demand, and the issue ends up in court where it will be determined if there is a legal basis for resisting the subpoena (such as executive privilege). It is true that Congress is Congress, but also the President is the President – and these are equal branches of government.
