So much for the benefit of the doubt — and for covering one’s bets. House Judiciary chair Jerrold Nadler (D-NY) doubled down on William Barr ahead of his first House hearing since issuing the summary of Robert Mueller’s special counsel report. Rather than wait to see whether Barr has fairly characterized Mueller’s findings, Nadler told Margaret Brennan on CBS’ Face the Nation that the Attorney General was nothing more than Trump’s “agent,” and that nothing less than full publication of grand-jury testimony will suffice:
New York Rep. Jerry Nadler, the Democratic chairman of the House Judiciary Committee, said Congress is “entitled to see all” of special counsel Robert Mueller’s report, doubling down on his demand that the Justice Department provide his committee with the findings of the nearly two-year Russia investigation with no redactions.
“Congress has a right to the entire report with no redactions whatsoever so we can see what’s there,” Nadler said on “Face the Nation” Sunday. “We’re entitled to see it because Congress represents the nation. And Congress has to take action on any of it. So we’re entitled to see all of it.”
Nadler said he would go to court to obtain secret grand jury testimony that might be included in the unredacted report.
“We would have to go the court to get the release of the grand jury information but that has happened successfully in every previous situation,” Nadler said. “And it’s not up to the attorney general to decide with respect to that or with respect to other material that he decides Congress can’t see.”
It’s not up to the Attorney General, but it is up to the law — and it’s not on Nadler’s side. Grand jury testimony is taken in secret and it’s against the law to publish it, which is why Mueller and his team are helping Barr redact such material from the soon-to-be-published report. As Andrew McCarthy writes at National Review, a new court decision in the DC Circuit — which governs the federal government, including the Department of Justice — has determined that judges do not have the authority to grant exceptions to this law except to “aid in the enforcement of criminal laws,” emphasis mine:
At issue was this question: Does a federal court have the authority to order disclosure of grand-jury materials if the judge decides that the interests of justice warrant doing so; or is the judge limited to the exceptions to grand-jury secrecy that are spelled out in Rule 6(e) of the Federal Rules of Criminal Procedure? The D.C. Circuit’s McKeever ruling holds that the text of Rule 6(e) controls. Consequently, judges have no authority to authorize disclosure outside the rule.
This is significant for the Mueller report because Rule 6(e) does not contain an exception to secrecy that would permit disclosure to Congress. …
The majority explained that the Supreme Court has long recognized the vital purposes served by grand-jury secrecy, and thus that secrecy must be protected unless there is some clear contrary indication in a statute or rule. Disclosure is the exception, not the rule.
In Rule 6(e), Congress has prescribed grand-jury secrecy and its exceptions. Those who contend that a court may permit disclosure outside the rule argue that judges had such authority before the rule was enacted. The panel majority, however, emphasized the rule’s sweeping language: Officials must refrain from disclosure “unless these rules provide otherwise.” The rule also takes pains to spell out the situations in which a judge may authorize disclosure. Plainly, the intent of the rule was to limit disclosure; were an unwritten judicial power to ignore the limitations recognized, the rule would be pointless.
If Nadler wants that changed, he’s in a perfect position to push it. Any bill changing federal law on grand-jury secrecy would have to start in his committee. That would run into a few problems along the way, the largest being that a Republican Senate wouldn’t take it up under these circumstances. However, it would also just be a bad idea as it would erode the grand-jury process and its ability to contain overeager prosecutors. Grand juries hear a lot of testimony, not all of it relevant or even true; it’s raw data presented only by one side, untested by cross-examination or rebuttal witnesses. It’s kept secret to protect both investigations and the people who may unjustly run afoul of them.
Nadler’s public tantrums aside, he won’t get the grand-jury testimony, and he has to know that. He also suggests that Mueller’s team is leaking because of dissatisfaction with Barr’s summary, but Mueller’s still working with Barr on the redactions and final public version of the report. Why would Mueller leak when he can just walk away and talk openly now? Barr knows that he can’t go afield of Mueller’s conclusions without getting burned by Mueller himself or the report. The likelihood of Barr’s summary being off by more than a degree from Mueller’s findings is microscopic at best.
So why does Nadler keep upping the ante? Beats me; there’s no upside at all. If Barr cooked the summary, we’d know it within the next couple of weeks at the latest. That would leave Nadler almost all of the 19 months between now and the 2020 presidential election to roast Trump and Barr over it. It would make more sense — and do wonders for Nadler’s credibility — to take the public position of waiting to see what Barr and Mueller produce before assuming the worst and casting aspersions on someone who had little to do with Trump before taking this office. If there’s any benefit to Nadler jumping the gun and inflating the Muellermas bubble once again ahead of a shocking deflation, it’s very difficult to see it.