Rescind 28 CFR § 600.9(c)—Eliminate Any Expectation That The AG Will Publicly Release The Special Counsel’s Report

What do James Comey, Robert Mueller, and Robert Hur have in common? They each refused to seek criminal charges against a prominent politician, but in doing so, revealed damaging information about that politician. FBI Director Comey’s remarks about Hillary Clinton’s email server may have cost her the 2016 election. Special Counsel Robert Mueller’s report led to an impeachment inquiry for President Trump. And Special Counsel Robert Hur’s report about President Biden’s mental state very well may undermine his election chances.

Again, Clinton, Trump, and Biden were not prosecuted. Yet in each case, federal law enforcement officials explained to the public why no charges would be brought. As much as I favor transparency, I think publicizing the decision not to indict is a mistake. Nothing good comes from releasing a declination report for a person who will not be charged. Prosecutors speak through indictments: either bill, or no bill. Anything short of an indictment should not be disclosed to the public.

Which brings me to the title of this post. The current special regulations provided that the  special counsel, at the “conclusion” of his work, “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” 28 CFR § 600.8(c). This requirement is salutary. The Attorney General should know why the special counsel is, or is not seeking an indictment.

The regulations, however, do more than require the special counsel to give a confidential report to the Attorney General. The regulations create an expectation that the Attorney General will publicize the report:

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. 28 CFR § 600.9(c).

This provision is a mistake. If the special counsel recommends an indictment, and the official is indicted, let the indictment speak for itself. If the special counsel declines to recommend an indictment, simply decline to indict, and let everyone move on with their lives. Again, there is no actual mandate to release the report. But this provision creates an expectation that it will be released.

I can see several benefits if this provision is rescinded. First, the special counsel would not feel like he is writing for the history books. A short memo that explains his declination decision would suffice. Such a brief report could also expedite the declination decision–which is in everyone’s interest. Second, the Attorney General will no longer be forced to consider whether to invoke executive privilege and redact portions of the report. Indeed, since nothing would be redacted, the special counsel could be even more forthright in his recommendations.  Remember, there was lengthy litigation over redactions made by Attorney General Barr. And perhaps Attorney General Garland should have whipped out his redaction marker for the Hur report. Third, if the report is never released, the Attorney General would not be put in the tough spot of trying to summarize a report he disagrees with. Remember how much flak Barr got for his summary of the Mueller report. Nothing good comes from making this report public.

I remain persuaded by Justice Scalia’s dissent in Morrison v. Olson as a policy matter: it is impossible to separate criminal prosecution from political accountability. So don’t pretend otherwise. Indeed, Attorney General Merrick Garland is under scrutiny from the White House for not bringing charges against Trump sooner, but instead caving to political pressure, and appointing Jack Smith. Had Garland proceeded on his own, Trump could have already been brought to a verdict. But here we are, with the Supreme Court on deck.

Like the expired independent counsel statute, the special counsel regulations have failed (sorry Neal). I hope there is a bipartisan consensus on this issue now. If it were up to me, the entire suite of regulations should be rescinded in the next administration. And they should be rescinded before any new special counsels are appointed. I’m not sure who would even have standing to challenge such a rescision. (A current special counsel might have standing.) At a minimum, rescinding 28 CFR § 600.9(c) should be a priority.

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