Apr 24th 2019

Mueller report: How Congress can and will follow up on an incomplete and redacted document

 

The release on April 18 of a redacted version of the Mueller report came after two years of allegations, speculation and insinuation – but not a lot of official information about what really happened between the Trump campaign and Russia.

Nor had there been much light shed on whether the president tried to obstruct the investigation into his campaign.

The report prepared by special counsel Robert Mueller and issued by the Justice Department provided greater detail about those questions. And it offered more information about Russian interference in the 2016 presidential election.

The Trump administration will want to argue that the release of the Mueller report is the end of investigating the Russia scandal.

On the contrary, the version of the report released is only the start of wide-ranging and intensive House investigations.

I served as special deputy chief counsel of the House Iran-contra investigation of the Reagan administration. We did months of hearings on the type of material that is either incomplete or redacted, as today’s Congress will find, in the Mueller report.

Here are some of the ways the House will likely follow up with more investigation.

1. Bring in witnesses to testify

The House will call some of the witnesses mentioned in the report for their full story, not just their cameo appearance in this incomplete report.

For example, the report has the public’s first account from Michael T. Flynn, Trump’s first national security adviser. So, there are a number of contacts mentioned for the first time on the public record between Flynn and Russia that in my reading consistently demonstrate Trump’s partiality to Putin and Russia.

But, until we get a House public hearing with Flynn as a witness, we will not know the full story.

Why did Trump have such a strong bond with Putin? Did Trump have a personal reason, not some foreign policy reason, to favor Russia? Why did Trump push Flynn to be favorable to Russia?

The report does not say.

With Flynn, as with many others, the report is the start, not the finish, of getting the full story.

2. Intelligence committee investigation

Attorney General Barr has announced that a “less redacted” version is, or will be, prepared for a few congressional figures. Presumably he means that the classified parts of the report that describe secret intelligence, which have been redacted, will be shown to the congressional leadership.

But, the leadership cannot itself undertake an investigation.

This is the kind of material that normally goes to the entire House Intelligence Committee. That committee can follow up with demands for documents and closed hearings. And that committee has the trusted expertise to determine that the conclusions of their inquiry can be made public, either via open hearings or by report to the House and the public.

The committee could determine what is actually known by investigators about how Russia viewed Trump and what Russia may have done that secured Trump’s favor.

3. Release grand jury information

Furthermore, the report redacts not just classified information, but grand jury information as well. And Barr may well have omitted, rather than redacted, invaluable grand jury evidence, especially documents.

These could be released by the attorney general to Congress with a court order under what is called Federal Criminal Rule 6(e).

Barr refused at congressional hearings to seek such an order. But, under sufficient pressure from Congress – against the background of a public that wants the full report and the full story – he could reconsider.

In the Watergate scandal, the prosecutors got exactly such a court order so they could make invaluable evidence available to the House Judiciary Committee.

4. Limit what’s limited by ‘HOM’

There is a great deal of key material redacted in the report with Barr’s label, “HOM” or “Harm to Ongoing Matter.” That means the redacted material likely relates to an ongoing investigation by law enforcement.

This appears to have been done with a very broad brush. Under pressure from the House, backed by the public, this could be treated by Barr with a fine scalpel instead.

For example, one of the most promising avenues to investigate is the potential overlap between Russia’s attempts to help Trump, WikiLeaks’ dissemination of material embarrassing to Hillary Clinton, and Trump’s requests for help in making material damaging to Clinton public. Who can forget Trump shouting, “I love WikiLeaks”?

Yet, Barr’s broad-brush redactions wipe out a whole section on WikiLeaks. Presumably Barr is saying, by this redaction, that the case against WikiLeaks founder Julian Assange is an ongoing matter.

As the recent arrest of Assange makes clear, there is currently an investigation into his actions by the U.S., which has charged him with conspiracy to commit computer intrusion. That means that WikiLeaks’ interaction with the Trump campaign is not the heart of that judicial matter. Rather, the heart is about Assange working with hackers who stole the damaging material.

So the House should be allowed to pursue the part – WikiLeaks and its interactions with the Trump campaign – which is central to the House’s concerns but peripheral to prosecutors of Assange.

5. Documents, documents, documents

Finally, this is just Mueller’s report. Behind it is much more that would be of vital interest to congressional investigators and the public.

This 400-plus page report is not the underlying information alluded to in the report, like copies of emails or other documents, that provides broader information about so many matters.

The House has every reason to seek and to receive the underlying information.

These various examples are just the beginning of what the House can seek to find as it takes off from the incomplete and redacted Mueller report.

When I was an attorney for the House Iran-contra Committee, we received far more encouragement and cooperation from independent counsel Lawrence Walsh than is promised by Barr. And we went on to dig up striking material during months of hearings.

I believe the House will now pick up where the Department of Justice has left off.

Charles Tiefer, Professor of law, University of Baltimore

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Browse articles by author

More Current Affairs

Sep 16th 2019
EXTRACT: "If the Supreme Court does agree with the Divisional Court that the question is political rather than legal, it will take the UK constitution into quite peculiar territory. Prime ministers will be the new kings and queens. They will be free to suspend parliament at will, and for as long as they wish, without any judicial interference. Parliament will meet not out of constitutional necessity but in the service of the government’s interests – namely, to pass its legislation and to maintain appearances, rather than to hold it to account."
Sep 12th 2019
Extract: "The Republican Party has lashed its fate to an increasingly unhinged leader. Though three other presidential hopefuls for 2020 now stand in Trump’s way, none can defeat him. But they can damage his reelection effort, which is why the Republican Party has been scrapping some primaries and caucuses. How well Trump does in November next year may well depend on how his fragile ego withstands the coming months."
Sep 2nd 2019
EXTRACTS: "Most people think of revolutions as sudden earthquakes or volcanic eruptions that come without warning and sweep away an entire political system. But historians, political scientists, and even the odd politician know that the reality is very different: revolutions happen when systems hollow themselves out, or simply rot from within. Revolutionaries can then brush aside established norms of behavior, or even of truth, as trivialities that should not impede the popular will............ Only time will tell whether we are currently witnessing the hollowing out of British democracy. But Prime Minister Boris Johnson may well have crossed some invisible Rubicon by.......... Whatever happens now, British parliamentary democracy may never be the same again. It will certainly never again be the model that so many people around the world once admired."
Aug 29th 2019
EXTRACT: "Events such as prorogations and dissolutions happen when countries face difficult times. Therefore, because of the disastrous effects of Brexit: sterling in freefall; a recession looming on the horizon and Britain’s international standing at its lowest ebb since Suez, it is no surprise that the country is in this position now. The worrying thing is that using the monarchical power of prorogation does not solve problems – it has a history of turning them into frightening and often violent crises. There is a worrying relationship between the use of such powers and a complete breakdown in government."
Aug 28th 2019
EXTRACT: "Reminiscent of Don Quixote, Trump is tilting at windmills. His administration is flailing at antiquated perceptions of the Old China that only compound the problems it claims to be addressing. Financial markets are starting to get a sense that something is awry. So, too, is the Federal Reserve. Meanwhile, the global economy is fraying at the edges. The US has never been an oasis in such treacherous periods. I doubt if this time is any different. 
Aug 24th 2019
EXTRACT: "In fact, with firms in the US, Europe, China, and other parts of Asia having reined in capital expenditures, the global tech, manufacturing, and industrial sector is already in a recession. The only reason why that hasn’t yet translated into a global slump is that private consumption has remained strong. Should the price of imported goods rise further as a result of any of these negative supply shocks, real (inflation-adjusted) disposable household income growth would take a hit, as would consumer confidence, likely tipping the global economy into a recession."
Aug 21st 2019
EXTRACT: "Climate change is real, and it is a problem. According to the IPCC, the overall impact of global warming by the 2070s will be equivalent to a 0.2-2% loss in average income. That’s not the end of the world, but the same as a single economic recession, in a world that is much better off than today.  The risk is that outsized fear will take us down the wrong path in tackling global warming. Concerned activists want the world to abandon fossil fuels as quickly as possible. But it will mean slowing the growth that has lifted billions out of poverty and transformed the planet. That has a very real cost. "
Aug 20th 2019
EXTRACTS: "It is no exaggeration to say that Johnson has lied his way to the top, first in journalism and then in politics. His ascent owes everything to the growing xenophobia and English nationalism that many Conservatives now espouse................Johnson has chosen a government of like-minded anti-European nationalists. His principal adviser, Dominic Cummings, was described by David Cameron, Britain’s prime minister from 2010 to 2016, as a “career psychopath.” Cummings is, alongside Johnson, the most powerful figure in the new government; he is an unelected wrecker who earlier this year was ruled to be in contempt of parliament. Fittingly, if depressingly, he now is masterminding our departure from the EU with or without parliamentary approval."
Aug 19th 2019
EXTRACTS: "Back in May, a jury found Patrick Syring, a former State Department official, guilty of 14 counts of making threats against my life and my staff at the Arab American Institute. This week, a federal judge sentenced Syring to five years in prison to be followed by three years of court-ordered probation.................It gives me no pleasure to see this man going to jail for a long period, but it does provide us all with a sense of enormous relief. I've been threatened before. My wife, my children, and I have received death threats for the past 50 years – owing to my advocacy for Palestinian rights and the rights of the Arab American community. My office was fire-bombed and an Arab American colleague, whom I hired, was murdered. Two individuals who, in the past, made death threats against me and my children were convicted and sentenced to prison terms. But this case was different."
Aug 15th 2019
EXTRACT: "Gaslighting typically refers to intimate relationships. It’s a way of controlling someone by creating false narratives – for example, that they are irrational or crazy. If such lies are repeated constantly, victims may get confused and start believing there really is something wrong with them. Confusion, diversion, distraction and disinformation can similarly be used to gaslight an entire society. So how can you tell if you are being gaslighted, and how do you avoid it in the first place?"
Aug 14th 2019
EXTRACT: "Trump has once again painted himself into a corner. Since the latest massacres, he’s been at pains to present himself as a reasonable fellow who can get behind gun reform (and perhaps mollify suburban women, his most dangerous foes on this issue). But he’s also noticeably (and typically) anxious to maintain the loyalty of the rural voters who form an important part of his base. Trump has also taken the gamble of using racial politics and white supremacy as instruments for winning in 2020. When faced with the dilemma of trying to assuage suburban voters or keeping the base close, time after time his instinct has been to shore up the base. (That didn’t work very well in 2018.)"
Aug 5th 2019
Extracts: "it is impossible to model many of the most important risks. Global warming will produce major changes in hydrological cycles, with both more extreme rainfall and longer more severe droughts. This will have severe adverse effects on agriculture and livelihoods in specific locations, but climate models cannot tell us in advance precisely where regional effects will be most severe. Adverse initial effects in turn could produce self-reinforcing political instability and large-scale attempted migration........Achieving a zero-carbon economy will require a massive increase in global electricity use, from today’s 23,000 TW hours to as much as 90,000 TW hours by mid-century. Delivering this in a zero-carbon fashion will require enormous investments, but as the Energy Transitions Commission has shown, it is technically, physically, and economically feasible......Added up across all economic sectors, however, it’s clear that the total cost of decarbonizing the global economy cannot possibly exceed 1-2% of world GDP. In fact, the actual costs will almost certainly be far lower, because most such estimates cautiously ignore the possibility of fundamental technological breakthroughs, and maintain conservative estimates of how long and how fast cost reductions in key technologies will occur. In 2010, the International Energy Agency projected a 70% fall in solar photovoltaic equipment costs by 2030. It happened by 2017."
Jul 31st 2019
Extract: "I admire the US for its culture, entrepreneurialism, and universities, and I have many American friends. Furthermore, I know how grateful the rest of the world has to be for US leadership after World War II. Never before had a victorious power behaved so generously toward others, including the defeated. We owe so much to US policy in the second half of the twentieth century. But although I am no declinist regarding American economic, intellectual, and military power, the country’s soft power has certainly decreased, and its positive influence around the world has declined. The reason for this is simple: US President Donald Trump is a bad man surrounded by a bad team of incompetent and dangerous ideologues."
Jul 30th 2019
Extract: "This pattern holds true in every extremist movement I have studied, whether from the past or the present, or the West or the East. This abuse of religion that provides security and certainty to those who are experiencing a loss of control is a universal phenomenon. If merely left there, it would not be a danger. But when it masks a political agenda or when it justifies violence either by groups or state actors, it becomes a danger."
Jul 30th 2019
Extract: "......the day before Mueller testified, the current FBI director, Christopher Wray, told the Senate Judiciary Committee, “The Russians are absolutely intent on trying to interfere with our elections.” And the day after Mueller testified, the Senate Intelligence Committee issued a report stating that Russia would be involved in the next presidential election, and that countries like Saudi Arabia, Iran, and China have the capacity to interfere in US elections as well. Despite these warnings, Senate Majority Leader Mitch McConnell blocked Senate consideration of two bills aimed at strengthening US election security,....."
Jul 15th 2019
".....one of the most accurate recession indicators, known as the yield curve, has recently been flashing warning signs. Every postwar recession in the US was preceded by an inversion of the yield curve, meaning that long-term interest rates had fallen below short-term interest rates, some 12 to 18 months before the outset of the economic downturn."
Jul 6th 2019
Extract: ".........growing poverty even when working, the collapse of stable and safe social identities linked to work, the increasing instability of employment security, and the rapid change of local communities due to emigration, migration, collapsing housing affordability, and redevelopment initiatives that displace communities. These provide precise and urgent electoral rallying points. They are particularly effective given that so many mainstream politicians ignore these basic grievances. In recent years, the lineup of politicians opposing the New Right – Hillary Clinton, the Remain campaign, Emmanuel Macron and Matteo Renzi – have been unwilling to even recognise these structural problems. This provided the New Right the opportunity to appear credible, simply by acknowledging them."
Jul 6th 2019
".........an openly Russophilic administration in the US may be one reason why Putin’s domestic support has been declining so sharply."
Jul 3rd 2019
"Extract: .........in a world of rapidly expanding automation potential, demographic shrinkage is largely a boon, not a threat. Our expanding ability to automate human work across all sectors – agriculture, industry, and services – makes an ever-growing workforce increasingly irrelevant to improvements in human welfare. Conversely, automation makes it impossible to achieve full employment in countries still facing rapid population growth........The greatest demographic challenges therefore lie not in countries facing population stabilization and then gradual decline, but in Africa, which still faces rapid population growth."
Jul 1st 2019
Trump’s personal style – vocal, expertise-averse, scandal-prone and driven by a focus on his partisan base – may be unusual, but aspiring Democratic presidential contenders may be making a serious error in allowing Trump’s “Wizard of Oz” act of big claims and small achievements to pass unchallenged. There is a massive gap between the pledges he made to voters and the reality of an outsider presidency thoroughly co-opted by its party. So far, the “Trump revolution” turns out to be an ordinary Republican presidency.