REHIRED?: A young William Barr during his tenure as attorney general under Bush 41. US DOJ
US DOJ
REHIRED?: A young William Barr during his tenure as attorney general under Bush 41.

Obviously, lots of folks are fisking Attorney General William Barr‘s summary of the Mueller report now that a redacted version of the report has been made public. But here’s a fib that Barr told in his press conference this morning that has nothing to do with the content of the report: Barr said that he shared a copy of the report with the White House and attorneys representing the president “to be consistent with long-standing practice” and “to be consistent with the practice followed under the Ethics in Government Act.”

However, Special Counsel Kenneth Starr established the opposite precedent in 1998, when President Clinton’s legal team asked to briefly review his report before it was submitted to Congress. Starr refused. Here’s the request from Clinton attorney David Kendall and the response from Starr:

First, Kendall’s letter requesting “a brief opportunity to review” Starr’s report.

Gentlemen:

Although I do not know whether recent media accounts that your Office is preparing a “report” to Congress pursuant to 28 U.S.C. § 595(c) are accurate, I am writing to request that, if you are indeed contemplating such a “report”, we be given a brief opportunity to review it before it is transmitted. We make this request to ensure that this first step in the most serious process contemplated by our Constitution is taken with due consideration for fundamental fairness.

This concern for fairness was shared by then-ChiefJudge Sirica twenty-four years ago, when he was presented with a report of the Watergate grand jury. The Watergate Special Prosecutor asked that this report be transmitted to the Judiciary Committee of the House of Representatives, which was then conducting an impeachment investigation, and Judge Sirica did so, but only after carefully reviewing it and finding that President Nixon would not be prejudiced;

“The Report here at issue suffers from none of the objectionable qualities noted in Hammond and United Electrical [cited infra]. It draws no accusatory conclusions …. It contains no recommendations, advice or statements that infringe on the prerogatives of other branches of government…. It renders no moral or social judgments. The Report is a simple and straightforward compilation of information gathered by the Grand Jury, and no more …. The Grand Jury has obviously taken care to assure that its Report contains no objectionable features, and has throughout acted in the interest of fairness.”
In re Report and Recommendation ofJune 5. 1972 Grand Jury. 370 F. Supp. 1219, 1226 (D.D.C. 1974).

Chief Judge Sirica’s desire to ensure that the Watergate report was fair and, in particular, that it contained no recommendations, advice or judgments that would infringe on the prerogatives of the legislative branch parallels our concern that any transmission to the Congress comply with the requirements of 28 U.S.C. § 595(c), that you advise the Congress only of any “substantial and credible information … that may constitute grounds for an impeachment.”
Nothing in that statute authorizes your office to prepare a “report” to the House that purports to summarize and analyze evidence. One reason for this is constitutional. Article I, Section 3, of
the Constitution provides that the “House of Representatives … shall have the sole Power of Impeachment,” and this power cannot be delegated to the OIC. The Constitution’s narrow, precise, explicit, and unambiguous assignment of the impeachment power to the House (as initiator) and Senate (as trier) indicates clearly that the Houses of Congress were each to exercise their respective impeachment powers independently and autonomously. Immigration and Naturalization Service v. Chadha. 462 U.S. 919, 955 (1983). Indeed, in a case argued by the Independent Counsel himself, the Supreme Court ruled that the word “sole” in the Impeachment Clause was defined, inter alia, as ‘”functioning … independently and without assistance . . Nixon V. United States. 506 U.S. 224, 231 (1993).

Procedural fairness also dictates that your Office is not authorized to issue such a “report.” Normally, a grand jury issues an indictment on the basis of probable cause, and the defendant is then entitled to a fair trial at which the defendant may obtain a not-guilty verdict, thus cleansing the defendant’s reputation of the charge leveled in the indictment. While federal grand juries do have a rarely exercised “presentment” power to issue reports, this power has been frequently limited by the courts on fairness grounds. See e.g. Application of United Electrical.  Radio & Machine Workers of America, et al.. Ill F. Supp. 858 (S.D.N.Y. 1953); Hammond v. Brown. 323 F. Supp. 326 (N.D. Ohio, a^, 450 F.2d 480 (6th Cir. 1971).

The independent counsel statute does authorize the OIC to file a “final report”, 28 U.S.C. § 594(h)(1)(B), describing the work of the office, and this report may be in the nature of a presentment, utilizing grand jury information under certain circumstances. Cfi In re North. 16 F.3d 1234 (D.C. Cir. 1994). However, this report, or portions of it, may be released by the Special Division of the Court of Appeals only if certain conditions are met and procedural
protections are taken. Primary among these conditions is the Special Division’s obligation to “make such orders as are appropriate to protect the rights of any individual named in such report…” 28 U.S.C. § 594(h)(2). Special care is taken to assure fairness for individuals named in a final report. The Special Division may provide such individuals any portion of the draft report which the independent counsel has filed with the Division “for the purposes of receiving within a time limit set by the division of the court any comments or factual information that such individual may submit.” Ibid. Those comments and factual information may be included by the Division “as an appendix to such final report.” Ibid.

The legislative history of these reporting provisions and, most recently, the 1994 reenactment of the statute, make clear that Congress viewed the independent counsels’ reporting obligations as “an important check on independent counsel investigative and prosecutorial activities by requiring them to identify and explain their actions.” H.R. Conf. Rep. No. 103-511, at 19 (1994). Although Congress believed that these reports were necessary to compensate for the “unique environment” of no “direct and ongoing supervision by senior Justice Department officials” in which the independent counsel operated. Congress was also sharply aware of the potential abuse that the subjects of these reports might suffer at the hands of the independent counsel and intended that these reports not be used in such a fashion. Ibid. The Conference Report specifically found that “[t]he power to damage reputations in the final report is significant, and the conferees want to make clear that the final report is not intended in any way
to authorize independent counsels to make public findings of conclusions that violate normal standards of due process, privacy, or simple fairness.” Ibid.

If the OIC does decide to transmit to the House of Representatives not merely the “information” it has gathered but some form of “report” or summary containing any factual and legal analysis or conclusions, we believe that fundamental fairness dictates that we have the opportunity to review such a document and submit simultaneously any reply we wish to make. To that end, I request that you first allow the President’s personal and White House counsel to review any draft “report” prepared by your Office ostensibly pursuant to 28 U.S.C. § 595(c), affording us one week to submit a written reply, which would be submitted to the Chief Judge together with your draft document, for possible transmission to the House of Representatives.

You have had unlimited resources at your command and no practical restriction on your power to investigate every aspect of the President’s life for the past four and one half years. Elemental fairness dictates that we be allowed to respond to any “report” you send to the House simultaneously with its transmission.

We would be amenable to any reasonable safeguards to protect the confidentiality of such a process. In late July, Bob and I discussed various issues relating to the impact of Rule 6(e), Fed. R. Crim. P., upon the evidence acquired by your investigation. At my behest. Bob agreed to state at the outset of the President’s August 17, 1998, testimony that the proceeding was governed by Rule 6(e). If, therefore, you take the position that Rule 6(e) governs any “report” which you produce, this should present no barrier, since I invite you to join with us in seeking a Rule 6(e) order from the Chief Judge to allow us to review the draft “report” and file comments with it.

Starr refused in a response two days later, stating that “as a matter of legal interpretation, I respectfully disagree with your analysis”:

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Dear David,

I write in response to your letter of September 7, 1998. In light of your decision to release your letter publicly, I take the liberty of making this response public as well.

As you doubtless know, this Office has steadily maintained the position that it would not be appropriate to comment on the possibility that it would make a “report” to Congress under 28 U.S.C., section 595(c). Media coverage speculating about the possibility does not in my judgment alter the soundness of that position. Suffice to say that the statute imposes an obligation on me in specified circumstances to provide certain information to the House of Representatives and I will endeavor to satisfy that
obligation if I believe that those circumstances exist.

Nonetheless, because of the gravity and seriousness of the issues you raise, I have decided to address the merits of your views, without directly commenting on the content, form, or prospect of any “report.” As a matter of legal interpretation, I respectfully disagree with your analysis. My conclusion is that you are mistaken in your views as to the content a “report” might have; your assessment of this Office’s role in the impeachment process; and your right to review a “report” before it is transmitted to Congress.

As an initial matter, let me address your concern that a “report” should not “summarize or analyze evidence.” Your reading of the law is, with all respect, at odds with its language and intent. As a linguistic matter, section 595(c) mandates an independent counsel “shall” provide “any substantial and credible information” that “may constitute grounds for impeachment.” The phrase “information” is, in my judgment, far broader than the narrow formulation you would place on it. Congress did not, for example, employ the terms “factual information” or “evidence” or even “admissible evidence.” Indeed, the use of the word “any” serves to broaden, rather than narrow the scope of the independent counsel’s obligation.

Moreover, the term “information” is not, as you would construe it, limited to factual evidence. Webster’s defines information as “(k)nowledge derived from study, experience, or instruction” and “knowledge of a particular event or situation.” Webster’s II New Riverside University Dictionary 628 (1984). Both definitions comfortably encompass some analysis of the underlying facts.

Indeed, your construction of the word “information” would, for example, constrain the Office to produce to the Congress only a glass with fingerprints on it and a fingerprint card, not the official analysis of the FBI laboratory matching the two together. That would be an odd, and unhelpful to Congress, approach. What is more, your interpretation would preclude an independent counsel from conveying information that is exculpatory since (i) such information is evidence that “may not” constitute grounds for impeachment and (ii) its significance can be conveyed to Congress only by means of the independent counsel’s analysis.

More fundamentally, your construction is at odds with the nature of the obligation section 595(c) places on the independent counsel. Prior to any submission of a “report” to Congress, the independent counsel has a statutory obligation to satisfy himself that the information contained therein is “substantial and credible” and that it addresses occurrences that “may constitute grounds for impeachment.” Both requirements oblige the independent counsel to exercise judgment. He must first determine if the information is substantial and credible. In other words, judgment must be exercised as to whether witnesses are to be believed and whether their version of events is corroborated by other evidence. The independent counsel must then assess the severity and gravity of the facts uncovered and attempt to discern whether they are of sufficient magnitude as to warrant transmittal to the House of Representatives.

As Congress has directed the independent counsel to render such judgments, I can see no basis in law or common sense to infer that Congress simultaneously precluded the independent counsel from conveying that judgment to Congress. Where, for example, two witnesses relate conflicting versions of events, the law, in my judgment, mandates that the independent counsel explain the factors weighing in his assessment of each witness’s credibility. In truth, the independent counsel is duty bound to provide Congress with his analysis of the information so the Congress can make its own informed decision.

You also suggest that the operation of some more general constitutional prohibition precludes the Office from filing a “report.” Our view is that section 595(c) resolves any such problem. Congress, which is vested by the Constitution with the sole power as to impeachments, enjoys plenary discretion to discharge its constitutional obligation as it deems fit, without review by the other branches. (Nixon v. United States,506 U.S. 224. 1993).

Historical materials confirm this assessment. As Alexander Hamilton wrote, impeachment proceedings should not “be tied down to … strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the Judges.” The Federalist No. 65, p. 441 (J. Cooke ed. 1961). Justice Story was similarly of the view that the “very habits growing out of judicial employments; the rigid manner … in order to protect persons accused of crimes by rules and precedents; and the adherence to technical principles are ill adapted to the trial of political offenses, in the broad course of impeachments. (The) tribunal (should be) confined, as little as possible, to strict forms. … There is little technical in the mode of the proceeding.” J. Story, Commentaries on the Constitution of the United States, section 765 (3d ed. 1858).
Thus, as now-retired Justice White wrote a few years ago, the delegation of fact-finding to subordinate bodies was hardly unknown to the Framers — and it is a practice that has been followed in legislatures and courts “(f)rom the commencement of our Government.” Nixon, 506 U.S. at 250 (White, J. concurring) (quoting Ex parte Peterson, 253 U.S. 300, 312 (1920)). After Nixon and in light of the textual grant of authority to the House of the sole power of impeachment, U.S. Const, art. I, section 2, cl. 5, there should be no doubt that the decision to require an independent counsel to transmit information to the House would readily withstand constitutional scrutiny.

Turning to your suggestion that you be permitted to review a “report” (if any) prior to its transmittal, I am persuaded that such a course is precluded by the statutory language and history of section 595(c). First, the apparent purpose of 595(c) was to eliminate the litigation that complicated the delivery of Mr. Jaworski’s report in the Watergate investigation. Absent section 595(c), an independent counsel in possession of information that may constitute grounds for impeachment would, as Mr. Jaworski was obliged to do, have to seek judicial approval prior to reporting the results of his investigation. In re Report and Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219 (D.D.C.)(Sirica, C.J.), aff’d, Haldeman v. Sirica, 501 F.2d 714 (D.C. Cir. 1974)(en banc).Congress’s enactment of section 595(c) was, it would appear, intended to avoid that necessity. In contrast, your interpretation (allowing judicial intervention and your own review of such a report) would render Congress’ enactment of section
595(c) a nullity.

Moreover, section 595(c) is silent as to the availability of judicial oversight allowing the entry of orders that would permit you to examine the “report.” By stark contrast, section 595(h)(2) expressly contemplates that the final report of the independent counsel will be provided to the Special Division, which will make it available for comment to those named in the final report prior to its release. Congress’s determination not to include such a “comment and response” provision in section 595(c) apparently reflects its view that no barrier should intervene between the House of Representatives and its prompt receipt of impeachment-related information.

Finally, I am constrained to observe that your current request is at war with your earlier view of the matter. On April 3, 1998, following the President’s sixth refusal to accept the grand jury’s invitation to testify, we wrote you as follows: “If the President chooses again to refuse his testimony, so that the grand jury may at least receive some of his evidence, please provide this Office with all exculpatory evidence you may have.” On April 17, 1998, you responded: “That you now request that we submit ‘exculpatory’ evidence is perfectly consonant with the occasionally Alice-in-Wonderland nature of this whole enterprise. I am not aware of anything the President needs to ‘exculpate.”‘ You were, with all respect, colorfully clear in declining our invitation.

In my view, it is for Congress, the repository of impeachment power, to decide if and when such information should be provided to your client. I anticipate that any information this Office may provide to the House of Representatives under the authority of section 595(c) would be provided in a sealed manner, for the House to release as it sees fit. Accordingly, if you believe it is appropriate for your client to be allowed to review that information (should any be forwarded to Congress) before that information is made public, I suggest that you address your concerns to the House of Representatives where such a decision might be made.

I trust this responds fully to your concerns. I regret that we disagree on a matter of such high moment and gravity, but my view is that the structural requirements of the Ethics in Government Act that created the independent counsel set forth an obligation that the independent counsel has directly to the House of Representatives.

Sincerely yours,
Kenneth W. Starr
Independent Counsel