The Mueller report will soon be released — but that will only be the beginning of the fight

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16 April 2019

If there's one thing we can count on by now from Attorney General William Barr, it's that he will not release the Mueller report with "as much transparency as possible." What that means is that House Democrats will immediately have to determine their next steps, depending on what they can actually glean from the report. At least some of the new revelations are bound to look bad for Donald Trump, especially on the issue of obstructing justice. We know that for two reasons: Trump aides who cooperated with the special counsel's office are shaking in their shoes over what the report will reveal (that can’t be a good sign for Trump); and Barr is releasing the report on Thursday, the mother of all news dumps given it's the day before Good Friday heading into Easter and Passover weekend.

Even if Barr manages to black out full sections related to the counterintelligence (CI) and collusion aspects of the Russia investigation, most of the obstruction information should remain visible based on the fact that it won't be part of ongoing criminal investigations and shouldn't be subject to grand-jury redactions.

If the information that survives redaction is damning enough, it's possible that House Democrats will have to grapple with opening up impeachment proceedings. But whether they go in that direction or not, one thing is clear: they will almost surely be subpoenaing the full report from the Justice Department. That subpoena will emanate from the House Judiciary Committee, which would also be responsible for initiating any impeachment inquiry. House Judiciary Committee chair Jerry Nadler already has the panel's approval for issuing such a subpoena, but crafting it to help ensure legal success could take a little time. Separately, House Intelligence Committee chair Adam Schiff has already requested all information regarding the CI probe.

But Barr will almost certainly reject these advances, and whether Democrats will succeed in their efforts to get the full report through a legal push is the subject of disagreement. Some legal experts believe Democrats must have already initiated impeachment proceedings in order to have the strongest legal footing possible. Courts have sometimes viewed impeachment proceedings as quasi-judicial and therefore a reasonable justification for releasing secret grand-jury information to Congress. In fact, it's possible that simply arguing the information is preliminary to their impeachment investigation would be enough for a judge to order the Justice Department to release the material.

It's also possible that Barr will try to deflect calls for full transparency by offering to consider the redactions on a case-by-case basis. But arguing over each redaction would almost certainly amount to an endless stall tactic, and time is of the essence since 2020 is sneaking up fast. One of the last things Democratic leadership will want to do is initiate any impeachment proceeding during a presidential election year. The closer the election is, the less appetite Democrats will have for taking big electoral chances. So any impeachment-related inquiry would likely have to get under way sooner rather than later.

Democrats could also choose to hold Barr in contempt of court for not complying with their subpoena and, if he still doesn't comply, even initiate impeachment proceedings to remove him. Some observers have viewed an impeachment inquiry as a path to potentially obtaining the full Mueller report, but it could also backfire in a couple of ways, depending on Democrats' goals. If Democrats actually tried to impeach Barr and failed, that could leave the public with the perception that they really were on shaky ground and engaged in overreach. Also, for anyone who really wants to see Trump impeached, it's hard to imagine Democrats would have the time or the bandwidth to initiate impeachment against both Barr and Trump within the next year, especially as they grow more cautious heading into the 2020 campaign and election.