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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? Each of them declined to press criminal charges against a prominent politician, but in doing so revealed damaging information about that politician. FBI Director Comey’s comments about Hillary Clinton’s email server may have cost her the 2016 election. Special counsel Robert Mueller’s report led to an impeachment inquiry into President Trump. And special counsel Robert Hur’s report on President Biden’s mental state may very well undermine his electoral chances.

Once again, Clinton, Trump and Biden were not prosecuted. However, in each case, federal law enforcement officials explained to the public why charges would not be filed. As much as I am in favor of transparency, I believe that making public the decision not to accuse is a mistake. It doesn’t do any good to post a rejection report for someone who won’t be charged. Prosecutors speak through accusations: bill or no bill. Nothing that is not an accusation should not be made public.

Which brings me to the title of this post. The current special rules provided that the special prosecutor, upon “concluding” his work, “shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions made by the special prosecutor.” 28 CFR § 600.8(c). This requirement is healthy. The Attorney General must know why the special prosecutor is or is not seeking an indictment.

However, the regulations do more than require the special counsel to provide a confidential report to the Attorney General. The rules create an expectation that the Attorney General will make the report public:

The Attorney General may determine that public disclosure of these reports would be in the public interest, to the extent such disclosure complies 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 charged, let the indictment speak for itself. If the special counsel refuses to recommend an indictment, he simply rejects the indictment and lets everyone move on with their lives. Again, there is no real mandate to publish the report. But this provision creates the expectation that she will be released.

I can see several benefits to rescinding this provision. First, the special counsel wouldn’t feel like he was writing for the history books. A brief memo explaining his decision to reject it would suffice. Such a brief report could also speed up the rejection 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. In fact, since nothing would be redacted, the special counsel could be even more direct in his recommendations. Remember, there was a long litigation over edits made by Attorney General Barr. And maybe Attorney General Garland should have pulled out his redaction marker for the Hur report. Third, if the report is never published, the Attorney General would not be in the difficult position of trying to summarize a report with which he does not agree. Remember how much criticism Barr received for his summary of the Mueller report. Nothing good comes of making this report public.

I remain convinced of Justice Scalia’s disagreement in Morrison v. Olson as a matter of policy: it is impossible to separate criminal prosecution from political responsibility. So don’t pretend otherwise. In fact, Attorney General Merrick Garland is under scrutiny from the White House for not bringing charges against Trump sooner, but bowing to political pressure and appointing Jack Smith. Had Garland proceeded on his account, Trump could have already rendered a verdict. But here we are, with the Supreme Court in sight.

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

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