This is the Appendix attached to a letter sent to Attorney General William Barr by six House Committee chairs on April 1, 2019. The link to the original PDF archived at Chairman Nadler's House website is below:
https://nadler.house.gov/components/redirect/r.aspx?ID=471137-70950625
1. Congress Urgently Requires the Full Report and the Evidence
The Attorney General's March 24 letter indicates that the Special Counsel found that President Trump may have criminally obstructed the Department's investigation of Russia's interference in the 2016 election and related matters. The Special Counsel pointedly stated that the evidence the investigation uncovered "does not exonerate” the President of obstruction, and includes potentially criminal acts not yet known to the public. It is difficult to overstate the seriousness of those actions if, in the wake of an attack by a hostile nation against our democracy, President Trump's response was to seek to undermine the investigation rather than take action against the perpetrators.
The longer the delay in obtaining this information, the more harm will accrue to Congress's independent duty to investigate misconduct by the President and to assure public confidence in the integrity and independence of federal law enforcement operations. These are not only matters of addressing the harm that has occurred; they are urgent ongoing concerns. As has been publicly reported and referenced in the March 24 letter, multiple open investigations referred by the Special Counsel to other U.S. Attorneys' offices may implicate the President or his campaign, transition, inauguration, or businesses. These critically important inquiries could be compromised if the President is seeking to interfere with them. Among other things, Congress has considered and continues to consider legislation to protect the integrity of these type of investigations against precisely the sorts of interference in which the President appears to have engaged.
Moreover, the Judiciary Committee is engaged in an ongoing investigation of whether the President has undermined the rule of law, including by compromising the integrity of the Justice Department. Other committees are engaged in investigations related to whether the President, his associates, or members of his administration have engaged in other corrupt or unethical activities or are subject to foreign influence or compromise by actors abroad. Congress's authority “to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government” has been unquestioned since the earliest times in its history.” That interest is at its height when Congress's oversight activities pertain to potentially illegal acts by the President. As a court determined in another context involving the release of a report about potential obstruction of justice by a President, “[i]t would be difficult to conceive of a more compelling need than that of this country for an unswervingly fair inquiry based on all the pertinent information.
The March 24 letter also claims that the Special Counsel's decision not to reach a definitive legal conclusion about obstruction “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime."? That view is fundamentally flawed. As a coequal branch of government–indeed, as the only branch of government that is expressly empowered by the Constitution to hold the President accountable—Congress must be permitted to assess the President's conduct for itself. The Attorney General cannot unilaterally make himself judge and jury. That is particularly so where the Attorney General has already expressed the view—in arguing against a theory of obstruction in this very investigation—that "there is no legal prohibition ... against the President's acting on a matter in which he has a personal stake."
The Attorney General's pre-confirmation memorandum on this topic also stated that “the determination of whether the President is making decisions based on ‘improper motives or whether he is ‘faithfully discharging his responsibilities is left to the people, through the election process, and the Congress." Neither the American people nor Congress, however, can make any such a determination without all of Special Counsel Mueller's evidence, analysis, and findings—unfiltered and in his own words.
The Special Counsel's investigation also confirmed that Russia engaged in extensive efforts to interfere in the 2016 presidential election, and Congress's need for that information is no less urgent. The Special Counsel's report, according to the Attorney General, describes "crimes committed by persons associated with the Russian government in connection with these efforts,” including “efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election.”
These hostile acts are ongoing: The Department has indicated in at least one other case that Russian influence efforts continued into the 2018 midterm elections. The Director of National Intelligence likewise testified last year in regard to the 2018 midterm elections that Russia would continue to use "persistent and disruptive cyber operations” and would target "elections as opportunities to undermine democracy” both here and against our allies in Europe. More recently, Director Coats warned that Russia and other adversaries "probably are already looking to the 2020 U.S. election” to conduct malign influence operations and that "Moscow may employ additional influence toolkits—such as spreading disinformation, conducting hack-and-leak operations, or manipulating data—in a more targeted fashion to influence U.S. policy, actions, and elections.”l3 It is imperative that Congress have access to the Special Counsel's full descriptions and evidence of these crimes and malign influence operations that the Russian government or associated actors perpetrated against our democracy.
Moreover, the Attorney General's March 24 letter acknowledges "multiple offers from Russian-affiliated individuals to assist the Trump campaign.»14 The facts and circumstances uncovered by the Special Counsel's Office surrounding these and any other overtures by foreign actors, as well as the individuals associated with them and how they responded to such offers, are of vital importance to Congress. The Foreign Affairs Committee, for example, requires access to these facts as it investigates whether the foreign and financial entanglements of the President and his associates may be improperly influencing foreign policy in ways that serve their private interests rather than the national security of the United States. Moreover, the House Permanent Select Committee on Intelligence must have access to the full facts as it evaluates counterintelligence threats and risks during and since the 2016 U.S. election, and as it considers remedies necessary to prevent, or mitigate to the greatest extent possible, the vulnerability of campaigns, or persons associated with them, to foreign influence or compromise operations.
Congressional committees have conducted multiple hearings regarding foreign influence operations and the security of our election systems and have proposed numerous legislative reforms to address vulnerabilities. 15 In an appropriations bill enacted into law last year, Congress allocated much-needed funding to support election security initiatives.16 It is critical to legislation that has or will be introduced this year to understand foreign intelligence disinformation campaigns, risks to our élection infrastructure security, evolving methods of voter targeting and suppression, and the manner in which foreign adversaries seek to exploit campaign vulnerabilities as well as the technology industry in our elections moving forward.
In addition, the House of Representatives' appropriations process for the next fiscal year is already underway—including for funding any election security, cybersecurity, and offensive or defensive counterintelligence operations needed to combat attacks during the 2020 election with submission deadlines scheduled for April and appropriations packages expected to reach the House floor in June."? However, Congress cannot fully address the scope of these threats (whether through appropriations or other legislation) without a thorough accounting by the Special Counsel's Office of the attack that occurred in 2016. Indeed, it is difficult to envision any function of Congress more important than ensuring the integrity of our democratic elections, authorizing and appropriating funding for the relevant federal authorities, and authorizing critical national security programs.
2. The Application of Rule 6(e) is Limited and Does Not Bar Disclosures to Congress
The Attorney General has indicated that the Department is reviewing the Special Counsel's report to identify material whose disclosure may be limited by Federal Rule of Criminal Procedure 6(e), which prohibits certain disclosures of “matter[s] occurring before the grand jury.” In a call with Chairman Nadler, the Attorney General suggested that redactions made in accordance with Rule 6(e) will be substantial. But even assuming Rule 6(e) applies with respect to disclosures to Congress, 18 the law clearly forbids the Department from making sweeping designations as to any evidence that happens to have been presented to a grand jury or was obtained through a grand jury subpoena.
Rule 6(e) "does not 'draw a veil of secrecy ... over all matters occurring in the world that happen to be investigated by a grand jury.""19 “The mere fact that information has been presented to the grand jury does not mean that the information is prohibited from disclosure.20 Further, as the D.C. Circuit has made clear, the fact that evidence was obtained through a grand jury subpoena does not necessarily mean that it is barred from disclosure by Rule 6(e).21 As a result, the Department cannot withhold documents or information simply because they were produced in response to a grand jury subpoena. Because a person receiving the documents would not know whether they were obtained through a grand jury subpoena or other means, "subpoenaed documents would not necessarily reveal a connection to a grand jury.922 Just last year, the D.C. Circuit reaffirmed this principal in Bartko v. Dep't of Justice, where it made clear that "copies of specific records provided to a federal grand jury” were not covered by Rule 6(e) because “the mere fact the documents were subpoenaed fails to justify withholding under Rule 6(e).'"
For this reason, it is clear the Department cannot withhold portions of the Special Counsel's report merely because they discuss information that was presented to the grand jury or documents that were obtained through a grand jury subpoena. Likewise, the Department cannot withhold underlying evidence simply because it was presented to the grand jury or obtained through a grand jury subpoena. That is particularly so because the Special Counsel's Office obtained a great deal of evidence by other means. The Special Counsel's team interviewed numerous witnesses on a voluntary basis and acquired voluminous records without resorting to grand jury subpoenas.24 Other evidence was obtained through different types of mandatory legal process, such as through the issuance of nearly 500 search warrants. That evidence can of course be disclosed without implicating Rule 6(e).
And because so much evidence was obtained through these other means, the Department would have no basis to withhold materials or descriptions of materials that it happens to have gathered by issuing grand jury subpoenas. So long as those materials do not on their face “reveal a connection to a grand jury,” Rule 6(e) does not bar their disclosure.
As to testimony or other grand jury materials that are genuinely subject to Rule 6(e), the Department can and should work with the House Judiciary Committee to obtain the permission of the district court overseeing the grand jury to make disclosures to Congress on a confidential basis, as it has done in the past in analogous circumstances. The Department took that precise path after the grand jury considering evidence in the Watergate affair issued a report describing potentially criminal acts by President Nixon. The Justice Department filed briefs fully supporting disclosure of the report to the House Judiciary Committee, and made the obvious point that "[t]he need for the House to be able to make its profoundly important judgment on the basis of all available information is as compelling as any that could be conceived." Independent Counsel Kenneth Starr likewise sought the court's authorization to disclose grand jury material regarding President Clinton to the House of Representatives.
The district court would have ample authority to permit disclosure of relevant materials to Congress. As Chief Judge Howell, the judge overseeing this grand jury, explained in a recent opinion, “numerous courts have recognized [that] a district court retains an inherent authority to unseal and disclose grand jury material not otherwise falling within the enumerated exceptions to Rule 6(e)."29 Indeed, every federal court of appeals to have considered this question has reached that conclusion.30 Congress's need for these materials is beyond compelling, and the public interest in Congress receiving these materials is at its height. President Trump, moreover, has expressed public support for the report's release." As such, the Department should immediately request that these materials be released to Congress.
The Attorney General has refused thus far to work with Congress in that regard. At his confirmation hearing, however, the Attorney General stated: “I... believe it is very important that the public and Congress be informed of the results of the special counsel's work. My goal will be to provide as much transparency as I can consistent with the law." The most efficacious way to honor that commitment would be to join with the House Judiciary Committee in seeking expedited disclosure of any Rule 6(e) material to Congress, and to refer any questions about the scope of Rule 6(e)'s application to independent court review.
3. Any Potential Claim of Executive Privilege Has Been Waived
Although the Attorney General's March 24 letter made no mention of executive privilege, his March 29 letter states that “there are no plans to submit the report to the White House for a privilege review," because the President “intends to defer” to the Attorney General on those issues. Whatever that may mean, it would be highly improper for the Department to conceal portions of the report based on claims of executive privilege on behalf of the President. As an initial matter, the Department's own long-standing policy is that executive privilege “should not be invoked to conceal evidence of wrongdoing or criminality on the part of executive officers."
In any event, the President and the White House have waived any claims of executive privilege. The White House voluntarily disclosed millions of documents to the Special Counsel's office and permitted multiple senior officials to be interviewed by the Special Counsel's team, without asserting any type of privilege. Having voluntarily disclosed this evidence, the President cannot now seek to invoke executive privilege to block its release. As the D.C. Circuit has held in an analogous context, regarding waiver of attorney-client privilege, "[t]he client cannot be permitted to pick and choose among his opponents, waiving the privilege for some and resurrecting the claim of confidentiality to obstruct others." Moreover, the White House has similarly shared information and documents with numerous former White House officials and their private counsel.36 The D.C. Circuit has expressly held that the White House “waive[s] its claims of privilege in regard to [] specific documents that it voluntarily reveal[s] to third parties outside the White House: "
Lastly, in the unlikely event that the White House has preserved privilege as to any of the evidence underlying the Mueller report, the public interest in disclosure would still overwhelmingly outweigh the President's interest in secrecy. The privilege pertaining to presidential communications is not absolute. Just as the Supreme Court determined in United States v. Nixon, the public interest here in the "fair administration of justice” outweighs the President's "generalized interest in confidentiality."
4. Ongoing Investigations, Classified Information, and Privacy and Reputational Interests of Third Parties Should Not Prevent Release to Congress
The fact that certain investigations remain ongoing cannot justify the Department withholding critical evidence from Congress that pertains to Russia's interference in our federal elections or obstruction of justice by the President. Indeed, during the previous Congress, the Department produced to congressional committees thousands of pages of highly sensitive law enforcement and classified investigatory and deliberative records. Many of these were related to this very same investigation—which of course was open and ongoing at the time.
Similarly, the mere presence of classified information in the Mueller report or in underlying evidence cannot justify withholding evidence from Congress, which is well equipped to handle classified information and does so on a daily basis. The Department can provide any classified materials to the appropriate committees for handling in secure facilities. It can also permit the Intelligence Community to review the report on an expedited basis in order to share with Congress whatever equities the Intelligence Community feels may be implicated by the release of specific information contained in the report or any underlying materials. Additionally, to the extent the Special Counsel's Office is in possession of underlying evidence that is particularly sensitive, the relevant committees are in a position to work with the Department to reach an accommodation to ensure appropriate handling as Congress has in the past on numerous occasions. However, the Department should not be able to simply invoke the same reasons for redacting the report from public view as a shield against disclosure to a coequal branch of government.
Finally, the Department also should not be able to keep from Congress information related to the “reputational interests of peripheral third parties” as referenced in the Attorney General's March 29 letter. To the extent the Special Counsel has developed information relative to President Trump's family members (including those employed by the White House) or his associates, campaign employees, consultants, advisers, and others within the scope of the investigation, that should not be withheld from Congress. It is precisely the type of information that the relevant committees need to perform their oversight, legislative, and other responsibilities. There is no constitutionally recognized privilege that would apply in such instances, and there is ample precedent for provision of such information, as recently as the last Congress.
