Rescind 28 CFR § 600.9(c): Eliminate any expectation that the AG will publicly release the special prosecutor’s report

What do James Comey, Robert Mueller and Robert Hur have in common? They each refused to bring criminal charges against a prominent politician, but in doing so revealed damaging information about that politician. FBI Director Comey’s remarks about Hillary Clinton’s email server may have cost her the 2016 election. Special Counsel Robert Mueller’s report has led to an impeachment inquiry into President Trump. And special prosecutor Robert Hur’s report on President Biden’s mental state could very well undermine his election chances.

Once again, Clinton, Trump and Biden were not prosecuted. However, in each case, federal law enforcement explained to the public why no charges would be filed. As much as I am in favor of transparency, I believe that publicizing the decision not to indict is a mistake. No good comes from issuing a denial report for a person who will not be charged. Prosecutors speak through indictments: either bill, or no bill. Anything other than an indictment should not be disclosed to the public.

Which brings me to the title of this post. The current special legislation required that the special prosecutor, upon the “conclusion” of his work, “provide the attorney general with a confidential report illustrating the continuation or rejection decisions reached by the special prosecutor.” 28 CFR § 600.8(c). This requirement is healthy. The attorney general should know why the special prosecutor is or is not seeking an indictment.

The rules, however, do more than require the special prosecutor to provide a confidential report to the attorney general. The regulations create the expectation that the Attorney General will publicize the report:

The Attorney General may determine that public disclosure of such reports is 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 prosecutor recommends an indictment and the official is indicted, we let the indictment speak for itself. If the special prosecutor refuses to recommend an indictment, he simply refuses to indict him and lets everyone move on with their lives. Again, there is no effective mandate to publish the report. But this provision creates the expectation that it will be released.

I see several advantages if this provision were repealed. First, the special prosecutor would not feel as if he were writing for the history books. A brief reminder explaining your decision to decline would be sufficient. Such a short relationship could also speed up the declination 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 parts of the report. Indeed, since nothing would be canceled, the special prosecutor could be even more forthright in his recommendations than he is. Remember, there has been a long dispute over the reviews made by Attorney General Barr. And maybe Attorney General Garland should have pulled out his editorial flag for the Hur report. Third, if the report were never released, the Attorney General would not find himself in the difficult situation of trying to summarize a report with which he disagrees. Remember how much criticism Barr received for his summary of the Mueller report. Nothing good comes from making this report public.

I remain persuaded by Justice Scalia’s dissent Morrison vs. Olson as a political issue: it is impossible to separate criminal proceedings from political responsibility. So don’t pretend otherwise. Indeed, Attorney General Merrick Garland is under scrutiny from the White House for not filing charges against Trump sooner, but instead giving in to political pressure and nominating Jack Smith. If Garland had proceeded alone, Trump might have already reached a verdict. But here we are, with the Supreme Court on deck.

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

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