The politicization of the highly anticipated report from special counsel Robert Mueller is now in full swing. House Speaker Nancy Pelosi has argued the report is a necessary prerequisite to begin impeachment proceedings, while the public availability of the report has created confirmation headaches for attorney general nominee William Barr.
But whether Congress and the American people ever see the special counsel report is an open question. At the conclusion of his investigation, Mueller is required to “provide the attorney general with a confidential report explaining the prosecution or declination decision reached by the special counsel.” Thereafter, the attorney general then “may determine that public release of these reports would be in the public interest.”
{mosads}Under current regulation, the neither Congress nor the American people are guaranteed the opportunity to read the report for themselves. The decision to release it is within the discretion of the attorney general. In an interview with the Daily Caller, President Trump pledged not to interfere with the decision on whether or not to make the report public. Trump said, “They will have to make their decision within the Justice Department. They will make the decision as to what they do.”
Enter Barr, the nominee for attorney general. If he is confirmed, Barr would supplant Acting Attorney General Matthew Whitaker and Deputy Attorney General Rod Rosenstein as the overseer of the special counsel investigation, giving Barr the power to decide whether to publicly release the report. Barr has refused to guarantee the release of the report during both testimony and his statements to the Senate Judiciary Committee.
In a surprisingly bipartisan response, Senators Charles Grassley and Richard Blumenthal have introduced the Special Counsel Transparency Act. The bill would require every special counsel to submit a report “complete with findings and evidence” that would be “directly disclosed to Congress and the American people.” A report would be required “whenever a special counsel finishes the investigation, is fired, or resigns” to ensure that the results “cannot be sealed or selectively censored.”
But whether the Special Counsel Transparency Act becomes more than just messaging legislation that purports to advance a particular interest but stands no chance of actually becoming federal law now rests squarely with new Senate Judiciary Chairman Lindsey Graham and Senate Majority Leader Mitch McConnell. Their political interests pose some problems.
In theory, the bill introduced by Grassley and Blumenthal matches up nicely with the bill introduced by Graham, known as the Special Counsel Independence and Integrity Act. Bipartisan action to ensure that Mueller has the ability to complete his investigation, while also ensuring the American people will see the evidence his special counsel team has uncovered, would help restore Congress to a functioning institution. But legislative logic is rarely that straight forward. There are two problems.
First, the increasingly hard line support that Graham has shown for the White House agenda, especially with respect to border wall funding, creates an open question as to his political courage to serve the interests of the American people when those interests conflict with the political interests of the president. With what is already known about the contacts between his campaign and Russians, Trump has little political interest in the final report becoming public ahead of his bid for reelection in 2020.
Second, even if Graham moves the bills through the Senate Judiciary Committee, the willingness of McConnell to ensure public disclosure is likewise in grave doubt. Having finally come out of his hiatus during the government shutdown, McConnell is now the most important defender that Trump has in Congress relative to House Democrats, but only as a means to protect and maintain his Republican majority in the Senate.
As his role in ending the government shutdown has shown, McConnell understands that chaos is not a governing philosophy. But if past is truly prologue, and because he is facing his own reelection campaign in deep red Kentucky in 2020, the likelihood of McConnell embarrassing the president by bringing either legislation to a full Senate vote is minimal.
Thus, the road to full disclosure is depressingly in doubt. The idea that the American people may never see a detailed report of what Mueller finds ought to be repugnant to every citizen. The fact that it is not is yet another indignity of the Trump era. Now more than ever, bipartisan efforts like the Special Counsel Transparency Act are necessary and worthy of support.
Chris Gagin is an attorney and director of Defending Democracy Together.