US. Department of Justice
Of?ce of Legislative Affairs

 

 

Of?ce of the Assistant Attorney General Washington, D. C. 20530
May-1, 2019

The Honorable Jerrold Nadler
Chairman

Committee on the Judiciary
US. House of Representatives

Washington, DC. 20515
Dear Chairman Nadler:

On April 18, 2019, the Attorney General took the extraordinary step of publicly
disclosing the report of Special Counsel Robert S. Mueller, with as few redactions as
possible. Under the regulations that govern the Special Counsel, his report was a
?con?dential,? internal Department of Justice (Department) document, which contained
the kind of prosecutorial deliberations that the Department almost never releases publicly.
28 CPR. 64 Fed. Reg. 37,038, 37,041 (July 9, 1999). Nonetheless, in
response to requests from you and other Members, and in the interest of transparency, the
Attorney General disclosed the report and volunteered to appear to testify before the
Committee. In addition, the Attorney General offered you and other congressional leaders
the chance to review the report with redactions only for grand-jury information (because
disclosure of that information is prohibited by law). That would permit you to review
98.5% of the report, including 99.9% of Volume II, which discusses the investigation of
the President?s actions.

Regrettably, before even reviewing the less?redacted version or awaiting the
Attorney General?s testimony, you served a subpoena demanding the unredacted report,
(ii) every document cited therein, and ?all documents obtained and investigative
materials created? by the Special Counsel?s of?ce over nearly two years. In other words,
the Committee has demanded all of the Special Counsel?s investigative ?les, which consist
of millions of pages of classi?ed and unclassi?ed documents, bearing upon more than two
dozen criminal cases and investigations, many of which are ongoing. You served such a
subpoena knowing that the Department could not lawfully provide the unredacted report,
that the Committee lacks any legitimate legislative purpose for seeking the complete
investigative ?les, and that processing your requests would impose a signi?cant burden on
the Department.

The Department has always been willing to follow the constitutionally mandated
accommodation process to address legitimate congressional requests for information. In
this case, both the Attorney General?s decision to release the report with minimal

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redactions and his Willingness to testify were already extraordinary accommodations
reflecting his respect for meeting the legitimate information needs of the Committee and its
Members. But this subpoena is not? legitimate oversight. The requests in the subpoena are
overbroad and extraordinarily burdensome. More importantly, these requests would pose a
fundamental threat to the con?dentiality of law enforcement ?les and the Department?s
commitment to keep law enforcement investigations free of political interference.

For reasons integral to our law enforcement responsibilities, the Department?s
practice is to reveal information about our criminal investigations only when we decide to
prosecute, and then generally only in court, in our indictments and subsequent ?lings.
When we decline to prosecute, we abide by fundamental principles of privacy and due
process and refrain from publicly assessing the information that was assembled regarding
individuals who were investigated but not prosecuted. Attorney General Barr?s decision to
release the con?dential report re?ected an extraordinary accommodation of the
congressional and public interest in the results of the Special Counsel?s investigation and
was justi?ed because it was critical for the American people to know the Special Counsel?s
conclusion that the Trump campaign did not conspire or coordinate with Russia in its
attempts to interfere with the 2016 presidential election.

We are disappointed, however, that the Committee has responded to this
extraordinary accommodation by re?exively issuing a subpoena that threatens to swallow
the extremely important principle that the Department must preserve the con?dentiality of
its investigations. It is one thing for the Attorney General to disclose a written report of
prosecutorial decisions, but quite another thing to open up the entirety of the investigative
?le to congressional review. Allowing your Committee to use Justice Department
investigative ?les to re-investigate the same matters that the Department has investigated
and to second?guess decisions that have been made by the Department would not only set a
dangerous precedent, but would also have immediate negative consequences.

Over the past year, you have repeatedly expressed concern that the Special
Counsel?s investigation would not remain free of outside interference. You now know, as
reported in the Attorney General?s March 22, 2019 letter, that the Special Counsel
completed his investigation, on his own terms and on his own schedule, and that there were
no instances where the Attorney General or his predecessors overruled the Special
Counsel?s judgment. That does not, however, mean that we now may tolerate the specter
of congressional interference with the autonomy of the Department?s law enforcement
functions. See, e. g, Assertion of Executive Privilege over Documents Generated in
Response to Congressiona! Investigation into Operation Fast and Furious, 36 Op. O.L.C.
at *4-5 (June 19, 2012) (opinion of Attorney General Holder) (citing the need ?to
ensure that critical ongoing law enforcement actions are not compromised and that law
enforcement decisionmaking is not tainted by even the appearance of political influence?).

The Department must ensure that it may continue to conduct law enforcement
investigations free of outside interference, particularly in high?pro?le cases that receive
intense public scrutiny. To that end, the Department has long resisted congressional
attempts to rummage through its investigative ?les. As Attorney General Michael
Mukasey recognized in advising the President to assert executive privilege over FBI

investigative reports bearing upon the Valerie Plame investigation, the Department has a
?concern about the prospect of committees of Congress obtaining con?dential records
from Justice Department criminal investigative ?les for the purpose of addressing highly
politicized issues in public committee hearings.? Assertion of Executive Privilege
Concerning the Counsel ?s Interviews ofthe Vice President and Senior White
House Sta?, 32 Op. O.L.C. 7, 10?11 (2008).

Attorney General Robert Jackson similarly declined to provide Congress with the
investigative ?les related to counterespionage activities. Writing ?with the approval
of and at the direction of [President Roosevelt] Jackson explained that disclosing such
information would ?be of serious prejudice to the future usefulness of the Federal Bureau
of Investigation,? which often relies upon information that is ?given in con?dence and can
only be obtained upon pledge not to disclose its sources.? Position of the Executive
Department Regarding Investigative Reports, 40 Op. Att?y Gen. 45, 46 (1941).
Furthermore, such disclosure ?might also be the grossest kind of injustice to innocent
individuals,? since ?[i]nvestigative reports include leads and suspicions, and sometimes
even the statements of malicious or misinformed people.? Id. at 47. Noting that a ?long
line of distinguished predecessors? had ?uniformly taken the same view,? Jackson
concluded that ?the public interest does not permit general access to Federal Bureau of
Investigation reports for information by the many congressional committees who from
time to time ask it.? Id.

Consistent with these precedents, ?[t]he Department?s longstanding policy is to
decline to provide Congressional committees with access to open law enforcement ?les.?
Letter for John Linder, Chairman, Subcommittee on Rules and Organization of the House,
from Robert Raben, Assistant Attorney General, Of?ce of Legislative Affairs at 3 (Jan. 27,
2000). ?[P]roviding a Congressional committee with con?dential information about active
criminal investigations would place the Congress in a position to exert pressure or attempt
to in?uence the prosecution of criminal cases.? Id. at 4. In addition, ?the disclosure of
documents from our open ?les could also provide a ?road map? of the Department?s
ongoing investigations. . . . The investigation would be seriously prejudiced by the
revelation of the direction of the investigation, information about the evidence that the
prosecutors have obtained, and assessments of the and weaknesses of various
aspects of the investigation.? Id.

Even with respect to closed law enforcement matters, the Department must protect
the numerous con?dentiality interests implicated by law enforcement information?
starting with our ?broad con?dentiality interest in materials that re?ect [the Department?s]
internal deliberative process.? Id. at 5. ?We have long been concerned about the chilling
effect that would ripple throughout government if prosecutors, policy advisors at all levels
and line attorneys believe that their honest opinion . . . may be the topic of debate in
Congressional hearings or ?oor debates.? Id. In addition, ?[t]he Department takes very
seriously its responsibility to respect the privacy interests of individuals about whom
information is developed during the law enforcement process.? Id. We also have
substantial con?dentiality interests regarding sensitive law enforcement and intelligence
information, such as information regarding con?dential sources, methods, and techniques.
In this case, the Special Counsel?s investigation received the White House?s cooperation in

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making witnesses and documents available. Similar access by the Department could be
impeded in future investigations if the White House were given reason to believe that .
Congress would receive each and every document shared with the Department.

Against this backdrop of the Department?s compelling need to protect the
autonomy and effectiveness of its investigations, as well as the extraordinary steps the
Attorney General has already taken to accommodate the Committee?s needs, the
Committee has not articulated any legitimate legislative purpose for its request for all of
the Special Counsel?s investigative ?les. The Committee has no legitimate role in
demanding law enforcement materials with the aim of simply duplicating a criminal
inquiry?which is, of course, a function that the Constitution entrusts exclusively to the
Executive Branch. If the Department were to provide law enforcement materials every
time a high-profile and politically charged investigation was underway, we would
irredeemably undermine the integrity and independence of law enforcement investigations.
This is especially true here where the Committee has demanded every single document
bearing upon over two dozen separate criminal cases and investigations, and where the
only point of the demand seems to be to generate public disclosures that the Special
Counsel?s extensive report did not already produce and to second? guess prosecution and
declination decisions made by the Department. This is not a legitimate use of
congressional investigative authority.

For these reasons, the Department is unable to provide the Committee with the
Special Counsel?s investigative ?les. In reaching this conclusion, we do not close the door
on engaging with the Committee about potential ?lrther accommodations in response to a
properly focused and narrowed inquiry that is supported by a legitimate legislative
purpose. If and when the Committee has completed its review of the Special Counsel?s
report and has identified particularized and legitimate needs for information that are not
satis?ed by the report itself, we will be prepared to engage further with the Committee and
to respond to your specific requests for information. Our response, of course, must remain
consistent with long-standing Department obligations, including the need to protect the
autonomy of criminal investigations, the obligation to protect grand?jury information, and
the legitimate con?dentiality interests of the Executive Branch.

We are also unable to honor your speci?c request for the completely unredacted
Special Counsel?s report because disclosing grand-jury information in response to
congressional oversight requests is prohibited by law. Rule 6(e) of the Federal Rules of
Criminal Procedure provides that matters occurring before a grand jury must be kept
secret, except in certain speci?cally enumerated circumstances. See McKeever v. Barr,
No. 17?5149, 2019 WL 1495027, at *2 (DC. Cir. Apr. 5, 2019). Rule 6(e) contains no
exception that would permit the Department to provide grand-jury information to the
Committee in connection with its oversight role. Therefore, the Department may not
provide the grand?j ury information that the subpoena requests. The Department has,
however, provided you and the Ranking Member (as well as other members of leadership
in the House and Senate) with access to a version of the report that redacts only the grand?
jury information that cannot be disclosed under Rule As noted above, this minimally
redacted version would permit review of 98.5% of the report, including 99.9% of Volume
II, which discusses the investigation of the President?s actions.

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Please do not hesitate to contact this of?ce if we may be of further assistance.

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VI

hen E. Boyd
Assistant Attorney General

cc: The Honorable Doug Collins
Ranking Member