Here’s my take on some of the most important outstanding issues on the Barr letter

(Posted to Twitter on March 30)

The controversy about the Barr letter continues apace today.

There are a number of outstanding questions and issues about it. Here’s my take on the most important ones. 1/30

(1) To his credit, Barr has said that he is in favor of as much transparency as the rules and guidelines allow. Many who are weighing in on the debate today don’t seem to appreciate how much this ties Barr’s hands, 2/30

because 6(e)(D) of the statute governing federal grand juries does give right of access to grand jury materials to government officials, and members of Congress are government officials. 3/30

Rule 6. The Grand Jury(a) Summoning a Grand Jury.(1) In General. When the public interest so requires, the court must order that one or more grand juries be summoned. A grand jury must have 16 to 23 members, and the court…https://tinyurl.com/kcvgxzu

So if Barr wants to be transparent and comply with the rules and guidelines, he will have to turn the grand jury materials over to Nadler eventually, and surely he understands this. 4/30

The only real question, it seems to me, is when and under what circumstances Barr will do so. 5/30

(2) Barr’s letter refers to “the report” (he used the singular) that he is redacting. But ultimately and inevitably, for the reasons I gave in a thread yesterday, there will be two versions of the report — one for Congress and one for the general public. 6/30

Given the point above (about transparency and the fact that the rules and guidelines Barr says he will follow provide for Congressional access to grand jury materials), what Barr MIGHT have in mind (obviously I’m speculating here) is issuing a single redacted report FIRST, 7/30

and another, separate MUELLER REPORT later for Congress that would be unredacted (except that sensitive sources and methods etc. would have to be withheld even from most members of Congress — though perhaps not from the Gang of Eight). 8/30

It seems to me that a case could be made for this approach, because if Barr first released to Congress a report that the public did not have, the controversy would almost certainly continue unabated in Congress, 9/30

leaving the public even more confused, because we wouldn’t have even a redacted text, which is what we would need to have, as a minimum, to make any sense at all of what the Rs and Ds in Congress were then wrangling about. 10/30

For Ds, the problem with Barr’s first giving Congress and the public a single, unredacted text is that it would give Rs a messaging advantage if that single, redacted report gave a less damaging impression of Trump and the campaign than the Report itself justified. 11/30

So the best course might be for Barr to give the relevant committees access to the grand jury and other materials *concurrently* with the issuance of the public (redacted) report. 12/30

(3) The other important controversy is over what Barr meant when he said that he will be redacting “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.” 13/30

Critics have raised legitimate concerns about this, because it is POSSIBLE that Barr meant that he intends to protect the “privacy and reputational interests” of anyone who was a subject or target of the investigation, but who was never indicted. 14/30

The policy of the DOJ on criminal investigations is to not include any derogatory information on unindicted individuals in any public reporting. The problem here, however, is that Mueller could not adhere to this rule and also give Congress and the public 15/30

a meaningful or even intelligible report on his investigation of Russia’s interference and “any links and/or coordination” between the Russian government and individuals associated with the Trump campaign — which was his actual assignment. 16/30

It would be impossible to do this if Mueller limited his Report to discussing only indicted individuals, because he did not establish that the campaign engaged in a criminal conspiracy 17/30

(though he might very well have come very close to showing this) and no one was indicted for being a participant in a criminal conspiracy. 18/30

So if Mueller adhered to the statutory guidelines for a typical 600.8(e) report, he couldn’t publicly report on anyone at all!

(He could in principle provide non-derogatory information about unindicted individuals — and only that — but that would be outrageously biased.) 19/30

Note that in a typical 6008.c(e) report, the Attorney General reports to CONGRESS (but not to the public) who the special counsel has indicted (if any), and who he has declined to indict (if any). 20/30

Since a typical 600.8(e) report is not made public, only indicted individuals come to public attention at all — because the general public is given access to indictments, and in fact to all court filings (except for filings that on the order of the judge are sealed). 21/30

But the statute only lays down what the special counsel MUST report; it doesn’t limit what he or she CAN report; and the reported length of the MUELLER REPORT alone indicates that Mueller’s is not a typical 60888.c report at all. 22/30

The upshot is that the statutory guidelines governing 600.8(e) reports tell us nothing about what individuals might be discussed in the MUELLER REPORT (or how), and what Barr might have in mind by the phrase “peripheral third parties” in connection with it. 23/30

(4) I learned from a quick and dirty Google search that “peripheral third parties” is not a common term in either legal or counterintelligence investigations. 24/30

What I did find concerns something called National Defense Letters, which do not seem (to me, anyway) to raise the kinds of concerns that critics are leveling against the Barr letter. 25/30 tinyurl.com/y2eme5j5

If Barr has in mind something like the description of the parties who are sent “National Defense Letters,” then his determination to protect their privacy and reputational interests probably isn’t problematic. 26/30

His intention to protect the interests of “peripheral third parties” would only be problematic if he were using that most uncommon phrase to cover individuals who were subjects or targets of the Mueller investigation but who were not charged. 27/30

That doesn’t seem to me to be a natural or even plausible interpretation of the phrase “peripheral third parties.” 28/30

Furthermore, Mueller could not possible provide an intelligible narrative of how members of the Trump campaign engaged with the Russian government or its operatives without mentioning unindicted individuals and what they did (or didn’t do) during the campaign. 29/30

I may be wrong, but I doubt that Barr intends to redact derogatory information about unindicted individuals from the Report, and furthermore, I can’t see how he could do it and still end up with an intelligible or readable report even if he wanted to do so. 30/30

Correction to tweet #11: “For Ds, the problem with Barr’s first giving Congress a single, REDACTED text is…”

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The Resistance. Vote Blue: True Blue American. We look forward, they look back. We’re progressive, they’re regressive. @twoodiac

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Thomas Wood

The Resistance. Vote Blue: True Blue American. We look forward, they look back. We’re progressive, they’re regressive. @twoodiac