Blanket, categorical rules can be both inefficient and self-defeating, as decision-makers lack the knowledge to understand their secondary consequences.
The attacks on Attorney General William Barr’s treatment of the Mueller report remind us that many of those who profess to deplore the President’s disregard for law and political norms have no interest in following the law or norms themselves. The Attorney General has acted punctiliously, prudently, and above all, lawfully in not making the Mueller report public or available to the Senate and House Judiciary committees without the delay needed to make careful redactions. To do otherwise would violate the law and undermine justice promoting norms.
The Attorney General is redacting four kinds of material before making the report public. The first is 6(e) material, material that would disclose information in grand jury proceedings. The law does not permit such disclosures and apparently the full report itself announces that it may contain grand jury material.
Second, the Attorney General is redacting the report to avoid disclosing intelligence sources and methods. Intelligence information is not to be disclosed either as general matter. It is odd that those who profess to be so worried about Russian interference in our political process would be willing to put some of our basic intelligence defenses against foreign powers at risk.
Third, the Attorney General is redacting information that may interfere with ongoing prosecutions, particularly those that the Special Counsel may have handed off to others. Again, many of those who most applaud the work of the independent counsel do so on basis of the argument that justice needs to be done equally for all. These redactions serve the cause of justice.
Finally, the Attorney General is following long-standing Department of Justice policy in redacting information that may harm the reputations of third parties. He has said that these excisions emphatically will not include any to protect the reputation of the President. But private citizens who are not charged with crimes do not deserve to have their name sullied simply because they have come up in a high profile investigation, when the Department would not have done so in the course of ordinary investigations.
And lest there be any concern that the Attorney General’s redactions are partisan or arbitrary, he has enlisted the attorneys in the Special Counsel’s office to help make them. Barr has said he has not overruled these attorneys as yet in any instance.
Now it is true that rights of the public to access the Mueller report may differ somewhat from the rights of the relevant congressional committees. But Congress has no more right to the first category of material redacted than the public: rule 6(e) makes no exception to the secrecy of Grand Jury materials for members of Congress. As for the second category, Congress has itself set up the intelligence committees to be the conduits for intelligence information. Barr respects that settlement by not giving that information to the judiciary committees. Widely disseminated intelligence information has been known to leak.
Barr himself has said he is open to further discussion about whether the committees should able to view material in categories three and four. But he is also right to require Congress to show some real need for the specific information, because of the countervailing policy considerations of justice and privacy. It is a sad commentary on our times that the Attorney General’s respect for the law and prior norms has become a matter of partisan controversy.