The Special-Counsel Regulations Were Never Intended to Deny Congress Information
Our recommendations were meant to ensure that the attorney general's regulations did not impair Congress's access to vital information in any meaningful way.
Michael Davidson, Thomas E. Mann, and Norman J. Ornstein
Members of the AEI-Brookings Independent Counsel Project in 1999
Special Counsel Robert Mueller will soon send his report to Attorney General William Barr. Few topics may be more relevant to our democracy than what the report says. There may be appropriate reasons to redact limited portions of it, recognizing that only the congressional intelligence committees ordinarily receive the most sensitive classified information. But the rest should be released to Congress and the American public so that they can debate the consequences, from protection of our national security to legal and political accountability for public officials.
There is no guarantee that the attorney general will release all or much of the report. At his nomination hearing, Barr hewed to a general statement that it was his "goal and intent to get as much information out as I can consistent with the regulations," referring to regulations adopted on July 1, 1999, by Attorney General Janet Reno to replace the Independent Counsel Act that had just expired.
Twenty years ago, former Senators George Mitchell and Bob Dole, each a former majority leader, called in two of us (Mann and Ornstein) and asked whether the American Enterprise Institute and the Brookings Institution would organize a bipartisan group to consider alternatives to the Independent Counsel Act as its expiration neared. If there was a consensus that the statute should not be renewed, after a number of independent-counsel investigations widely viewed as excessive, there was also a need to replace it with balanced regulations that enabled, in the face of conflicts of interest, independent investigation into wrongdoing by members of an administration.
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The AEI/Brookings Project on the Independent Counsel Statute assembled a distinguished bipartisan group to join Dole and Mitchell. Its members included Department of Justice officials (former Attorney General Richard Thornburgh, former Solicitor General Drew Days, former Assistant Attorney General Carla Hills, and former Principal Deputy Solicitor General and current Chief Justice John G. Roberts Jr.); former House members (Bill Paxon and David Skaggs); a former associate White House counsel and Office of Legal Counsel attorney (Zoe Baird; John Roberts had also been an associate White House counsel); and a former deputy independent counsel (Mark Tuohey).
On June 11, 1999, Dole and Mitchell, accompanied by Days and Roberts, presented the project's unanimous report at a House Judiciary Committee hearing.
After careful study of the Department of Justice's long experience in addressing potential conflicts between the interests of justice and the political interests of an administration, our bipartisan team opted to rely on the integrity and sense of responsibility of attorneys general. The lesson that we drew from history was that attorneys general have done well in identifying circumstances in which investigation by specially appointed counsel might contribute to public confidence in the administration of justice.
So the bipartisan group agreed that the attorney general, not a special counsel, should determine whether to release to Congress or the public all or parts of a final report. We were mindful that the statute, 28 USC 503, that provides for the advise-and-consent appointment of an attorney general, describes that officer as "Attorney General of the United States." In other words, while the attorney general is nominated by the president and serves in the executive branch, the duties of the office are to the whole of the U.S. government, and to the Constitution. The attorney general has the same duty to enable the legislative branch to carry out its responsibilities, including—but not limited to—possible impeachment, that the attorney general has to all branches of government.
Accordingly, the report added important caveats.
First, underscoring the significance of congressional oversight, the report stated: "Congressional oversight is, of course, a central element of accountability. The Attorney General's duty, on behalf of the Executive Branch, to be responsive to Congress on matters within the latter's responsibility should be sufficient assurance that information will be appropriately shared."
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Second, our report sought to "specifically make clear" that the attorney general's regulation should expressly state that "nothing in it prevents Congress from obtaining information during an impeachment proceeding."
At a moment in history very different from today, the regulations published by Reno were silent on these caveats. We cannot be sure about why she did not include them, but it is reasonable to believe that Reno and her team trusted the office and its future occupants enough that they did not deem them necessary. Whatever the case, the principles advanced by the project are grounded in both the Constitution's allocation of responsibilities and the duty of attorneys general to be guided by them—and the fact that these principles were endorsed by the wide range of experienced former lawmakers and executive-branch officials involved in the project should carry additional weight.
What does this mean? When Robert Mueller reports, the Department of Justice should do more than huddle within itself to decide what to do, as if this were an ordinary criminal case. Rather, it should engage with Congress to understand how its legislative and oversight responsibilities will be advanced by in-depth knowledge of what the special counsel has learned. For example, Mueller has been tasked with not only a criminal investigation, but also a counterintelligence investigation, the product of which—apart from prosecutions—should inform the executive and legislative branches as to whether additional resources should be allocated or authorities should be enhanced to meet threats to the United States.
Consistent with our bipartisan report, Barr has a responsibility to the executive branch and the special counsel—and clearly as well to Congress and the public interest. Our recommendations were meant to ensure that the attorney general's regulations did not impair Congress's access to vital information in any meaningful way. The burden is on Barr to prove that wisdom correct.
Michael Davidson was Senate Legal Counsel (1979-1995) and Counsel in 1999 to the AEI-Brookings Independent Counsel Project. Thomas E. Mann and Norman J. Ornstein were co-directors of the Project.