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House Judiciary Chairman Sends DOJ Detailed Counter Offer for Mueller Report Redactions and Underlying Evidence

May 3, 2019
Nadler Sets 9 a.m. Monday Deadline

Washington, D.C. – Today, House Judiciary Committee Chairman Jerrold Nadler (D-NY) sent a letter to Attorney General William Barr with a counter offer to immediately gain access to the redacted portions of Special Counsel Mueller’s report and underlying materials.

 

In the Judiciary Committee Counter Offer:

 

  • Nadler requests that the Department reconsider its refusal to allow all Members of Congress and appropriate staff to view redacted portions of the report in a secure location, not including the grand jury material.  

 

  • Nadler asks that the Department work jointly with Congress to seek a court order to provide grand jury material.

 

  • For the production of underlying documents, Nadler offers to prioritize those materials specifically cited in the report.

 

In his letter, Chairman Nadler wrote, “The Committee is prepared to make every realistic effort to reach an accommodation with the Department.  But if the Department persists in its baseless refusal to comply with a validly issued subpoena, the Committee will move to contempt proceedings and seek further legal recourse. We request a response by 9 a.m. on Monday, May 6, 2019.”

 

On May 1, 2019, Attorney General Barr missed the subpoena deadline to provide the full Mueller report and underlying evidence to Chairman Nadler. Barr sent a letter to Chairman Nadler instead.

 

On April 19, 2019, Chairman Nadler and other top Senate and House Democrats sent a letter to Attorney General Barr rejecting his limited offer that would have only allowed twelve Members of Congress to view a less-redacted version of the report in person and would not permit them to discuss it with other Members of Congress who all have top security clearances.

 

 A full copy of the letter can be found here and below.

 

 

May 2, 2019

 

The Honorable William P. Barr

Attorney General

U.S. Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530

 

Dear Attorney General Barr:

 

            I write to respond to the Department’s letter of May 1, 2019 refusing to comply with the Judiciary Committee’s subpoena for the unredacted Mueller report, the documents it cites, and other underlying materials.  As you know, the Committee has repeatedly engaged with your staff in writing, by telephone and in person to discuss a way forward on the subpoena. 

 

At the outset, we note that the Department has never explained why it is willing to allow only a small number of Members to view a less-redacted version of the report, subject to the condition that they cannot discuss what they have seen with anyone else.  The Department also remains unwilling to work with the Committee to seek a court order permitting disclosure of materials in the report that are subject to Federal Rule of Criminal Procedure 6(e).  And the Department has offered no reason whatsoever for failing to produce the evidence underlying the report, except for a complaint that there is too much of it and a vague assertion about the sensitivity of law enforcement files.

 

            Nonetheless, the Committee remains willing to negotiate a reasonable accommodation with the Department.  First, the Committee requests that the Department reconsider its refusal to allow all Members of Congress and appropriate staff to view redacted portions of the report that are not subject to Rule 6(e) in a secure location in Congress.  As the Committee has already indicated, Congress has ample means of providing for safe storage of these materials; and it is routinely entrusted with the responsibility to protect classified and other sensitive information. 

 

Second, the Committee renews its request that the Department work jointly with Congress to seek a court order permitting disclosure of materials covered by Rule 6(e).  The Department has asserted that Rule 6(e) “contains no exception” that would permit such disclosure, but courts have provided Rule 6(e) materials to Congress under the rule’s “judicial proceeding” exception in the past,[1] and other exceptions may also be available.[2]

 

            Third, the Committee is willing to prioritize a specific, defined set of underlying investigative and evidentiary materials for immediate production.  As indicated in item two of the Committee’s subpoena, the Committee has a heightened interest in obtaining access to the investigative and evidentiary materials specifically cited in the report.  This discrete and readily identifiable set of documents includes reports from witness interviews (commonly known as “302s”) and items such as contemporaneous notes taken by witnesses of relevant events.  Since these materials are publicly cited and described in the Mueller report, there can be no question about the Committee’s need for and right to this underlying evidence in order to independently evaluate the facts that Special Counsel Mueller uncovered and fulfill our constitutional duties.  As the Mueller report makes clear, this need is amplified where, as here, Department policy prohibits the indictment of a sitting President and instead relies upon Congress to evaluate whether constitutional remedies are appropriate.  In addition, to the extent these materials are classified or contain sensitive law enforcement information, we are prepared to maintain their confidentiality as we regularly do with similar information. 

 

Fourth, as we have already indicated in the instructions to the subpoena, we are also prepared to discuss limiting and prioritizing our request in item three of the subpoena for other underlying evidence obtained by the Special Counsel’s office.

 

            Accommodation requires negotiation that takes into account the legitimate interests and responsibilities of both Congress and the Department.  Your proposed conditions are a departure from accommodations made by previous Attorneys General of both parties.  As recently as last Congress, the Department produced more than 880,000 pages of sensitive investigative materials pertaining to its investigation of Hillary Clinton, as well as much other material relating to the then-ongoing Russia investigation.  That production included highly classified material, notes from FBI interviews, internal text messages, and law enforcement memoranda.  The volume of documents cited in the Special Counsel’s report is surely smaller, and the Committee is willing to work with the Department to prioritize production of materials even within that defined category.  Additionally, in the most recent prior instance in which the Department conducted an investigation of a sitting President, Kenneth Starr produced a 445-page report to Congress along with 18 boxes of accompanying evidence. 

 

            Lastly, it cannot go unremarked that, in refusing to comply with congressional oversight requests, the Department has repeatedly asserted that Congress’s requests do not serve “legitimate” purposes.  This is not the Department’s judgment to make.  Congress’s constitutional, oversight and legislative interest in investigating misconduct by the President and his associates cannot be disputed.  The Committee has ample jurisdiction under House Rule X(l) to conduct oversight of the Department, undertake necessary investigations, and consider legislation regarding the federal obstruction of justice statutes, campaign-related crimes, and special counsel investigations, among other things. 

 

            The Committee is prepared to make every realistic effort to reach an accommodation with the Department.  But if the Department persists in its baseless refusal to comply with a validly issued subpoena, the Committee will move to contempt proceedings and seek further legal recourse.

 

            We request a response by 9 a.m. on Monday, May 6, 2019.  Please do not hesitate to contact us if you have any questions.

           

Sincerely,

 

 

__________________________________

Jerrold Nadler
Chairman

House Committee on the Judiciary

 

cc:       The Hon. Doug Collins

Ranking Member, House Committee on the Judiciary

 

 

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[1] See, e.g., In re Grand Jury Proceedings of Grand Jury No. 81-1 (Miami), 669 F. Supp. 1072, 1075-76 (S.D. Fla. 1987).

[2] See Fed. R. Crim. P. 6(e)(3)(D) (allowing disclosure of grand jury materials “involving foreign intelligence, counterintelligence . . . , or foreign intelligence information” to “any federal law enforcement, intelligence, . . . or national security official to assist the official receiving the information in the performance of that official’s duties”); id. (allowing disclosure of grand jury materials relating to “a threat of attack or other grave hostile acts of a foreign power or its agent . . . , or clandestine intelligence gathering activities by an intelligence service or network of a foreign power or by its agent” to “any appropriate federal . . . official”). 

116th Congress