Barr's pledge to make Mueller report public comes with a big "escape hatch"

The report might be covered by the same shield former President Nixon used to block the release of his damning Oval Office tape recordings.
Bill Barr left himself a lot of wiggle room to censor Mueller

President Trump’s pick for attorney general, Bill Barr, was unequivocally clear when he said he would not "be bullied into doing anything I think is wrong by anybody, whether it be editorial boards or Congress or the president."

But he was hardly as categorical in assuring senators at his confirmation hearing Tuesday about what sort of influence he’d assert over special counsel Robert Mueller’s Russia investigation and final report.

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And his lawyerly answers left a lot of wiggle room to do just that.

When asked if he’d interfere in the release of Mueller’s final report or overrule the special counsel’s most important decisions, Barr’s answers amounted to a qualified maybe. The special counsel regulations give him the right to veto Mueller in some cases, he reminded the Senate Judiciary Committee. And the report, he said, might be covered by the same shield former President Nixon employed when trying to block access to his damning Oval Office tape recordings.

“Someone might raise a claim of executive privilege,” Barr said on the first day of his Senate confirmation hearings. Later, he added: “I don’t know, at the end of the day, what will be releasable.”

With that, Barr blew a massive hole in his broader pledge to make as much of Mueller’s final report public as the law will allow, legal experts told VICE News.

“Barr is leaving an escape hatch of executive privilege,” former prosecutor Harry Sandick told VICE News. “There will be public criticism if he does not allow the key facts to become public. But there will be little that can be done to avoid the resulting litigation.”

MUELLER VETO

Though Barr made broad assurances about respecting Mueller — whom he’s known on both a professional and personal level for three decades — and the independence of the special counsel’s investigation, he made clear he would not prematurely relinquish his powers. Namely, his right to veto Mueller’s most important decisions if Barr deemed them inconsistent with DOJ practices — a provision explicitly granted to the Attorney General in the special counsel regulations.

“In order to overrule Mueller, the Attorney General or Deputy Attorney General would have to determine, after giving Mueller’s position great weight, that it was so unwarranted under established policies, that it would have to be done,” Barr said. “That’s the standard I would apply.”

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“He is trying to keep some options open.”

In his answer, Barr recited the relevant passage granting him that authority almost verbatim, suggesting a keen familiarity with that particular section of the text.

“I’m not suspending that responsibility,” Barr said. “I’m not pledging it away.”

“You would not like it if I made some pledge to the president that I was going to exercise my responsibilities in a particular way,” he continued. “And I’m not going to make a pledge to anyone on this committee that I’m going to exercise [them] in a particular way.”

Barr, whose broad view of executive power has caused Democrats to worry he may prove overly deferential to Trump, said little Tuesday to allay such fears.

“He is trying to keep some options open,” said Jens David Ohlin, vice dean of Cornell Law School. “Although he has committed to the idea of releasing Mueller’s report in some form, he wants to be clear that some pieces of the report might need to be held back or redacted.”

About that report

Despite the expert legal tap-dancing by Barr, who was confirmed to the same position 27 years ago under former President George H. W. Bush, Barr did commit to some specifics about the Russia investigation.

He promised he wouldn’t dismiss Mueller without cause, and added that he couldn’t imagine the famously fastidious Mueller would do anything to give him reason to. “Frankly, it is unimaginable to me that Bob would do anything that gave rise to good cause,” Barr said.

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He also slapped down President Trump’s TV lawyer, Rudy Giuliani, who recently suggested the White House might try to “correct” parts of the Mueller report before it’s publicly released.

“That will not happen,” Barr deadpanned.

Barr said he would confer with Deputy Attorney General Rod Rosenstein, the man who appointed Mueller and then took on the role as his political guardian in Washington, about what should be done with Mueller’s findings.

Mueller’s regulations require the special counsel to file a “confidential” final report to the Attorney General — which, if he’s confirmed, would be Barr.

The regulations would then require Barr to send some kind of filing along over to Congress, he affirmed. But he said he still needs to think about what form that transmission might take.

“In addition [to Mueller’s filing to the AG], the Attorney General is responsible for notifying and reporting certain information upon the conclusion of the investigation,” Barr said. “Now, how these are going to fit together, and what can be gotten out there, I’d have to wait…. I’d want to talk to Rod Rosenstein and see what he’s discussed with Mueller. All I can say right now is, my goal and intent is to get as much information out as I can, consistent with the regulation.”

“Like so many things, the devil will be in the details.”

Importantly, Mueller’s regulations don’t require the same kind of robust, highly-detailed report once compiled and shipped directly to Congress by former special prosecutor Ken Starr about former President Bill Clinton in 1998, Starr himself told VICE News in Nov. 2018.

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READ: Ken Starr says there will be “hell to pay” if Whitaker messes with Mueller

“The regulations under which [Mueller] was appointed do not contemplate a fulsome kind of report,” Starr said. “What is contemplated is actually somewhat minimal.”

Barr’s legal tap-dancing Tuesday all but confirmed such an interpretation, and amounted to less than a firm promise to simply release what Mueller’s finds.

“Like so many things, the devil will be in the details,” Ohlin said. “What will be redacted and how much of the report will be visible? This could be quite reasonable or quite unreasonable, depending on how it is implemented when he gets the report.”

He’s not Whitaker

Bill Barr left himself a lot of wiggle room to censor Mueller

Acting Attorney General Matthew G. Whitaker points to a group of US Attorneys while speaking at the Project Safe Neighborhoods National Conference in Kansas City, Mo., Thursday, Dec. 6, 2018. (AP Photo/Orlin Wagner)

If confirmed, Barr will replace acting Attorney General Matt Whitaker, whose brief tenure has been marked by controversy.

Whitaker’s Department of Justice has refused to specify who, exactly, is exercising oversight of Mueller’s work, prompting demands from Congress for Whitaker to march down to Capitol Hill and explain the situation.

Whitaker’s appointment has also been challenged in court as potentially illegal, although the Supreme Court declined on Monday to hear a challenge to his status.

Trump appointed Whitaker in November, circumventing the department’s normal chain of succession to select a man who has repeatedly appeared on television to criticize the Mueller investigation.

Neal Katyal, the former Solicitor General who helped draft the special counsel regulations, said that despite whatever doubts might have been raised by Barr’s testimony Tuesday, one thing was certain: he’s better than Whitaker, who has also been widely criticized for serving on the advisory committee of an invention-promotion company dubbed a “scam” by the Federal Trade Commission.

“This nominee is better than Matt Whitaker, but so is this coffee cup,” Katyal quipped on MSNBC.

Cover: Attorney General nominee William Barr speaks before the Senate Judiciary Committee on Capitol Hill in Washington, Tuesday, Jan. 15, 2019. (AP Photo/Carolyn Kaster)