The Special Counsel’s Report: Can Congress Get It?

"Recent media reports suggest that Special Counsel Robert S. Mueller III is close to concluding his investigation of Russian interference in the 2016 election. As discussed in this separate Sidebar, Department of Justice (DOJ) regulations require the Special Counsel to deliver a confidential report (Special Counsel report) to Attorney General William Barr at the conclusion of the investigation, and the Attorney General must then notify Congress with “an explanation” for the investigation’s termination. But there appears to be no requirement in statute or regulation obligating the Attorney General to share the full Special Counsel report with Congress, and Mr. Barr has indicated that legal considerations might require him to withhold some or all of it. In response, some Members of Congress have suggested that a subpoena may be issued to compel disclosure of the full report.

Should the Attorney General withhold portions of the Special Counsel report and, potentially, resist a congressional subpoena seeking disclosure, the decision would likely stem, at least in part, from two legal limitations that restrict the release of information about federal criminal investigations: (1) Federal Ruleof Criminal Procedure 6(e) (Rule 6(e)), which, among other things, prohibits an attorney for the government from disclosing “a matter occurring before the grand jury”; and (2) “executive privilege,” which potentially insulates certain information from disclosure to protect executive branch confidentiality interests. The legal considerations that could impact the Attorney General’s decision to withhold specific information from Congress may vary depending on the particular nature and context of the requested information and any subpoena. However, these two doctrines would appear most likely to inform not only the Attorney General’s decision, but also any potential judicial consideration of the question if an impasse between Congress and the executive branch over the Special Counsel report were eventually to make its Congressional Research Service 7-5700 www.crs.gov LSB10271 Congressional Research Service 2 way to court. The federal judiciary has generally sought to avoid adjudicating disputes between the executive and legislative branches when possible, instead encouraging the branches to settle their differences through a process of negotiation and accommodation. However, the House has previously been successful in using the courts to enforce a congressional subpoena issued to the Attorney General, though the context-specific nature of judicial rulings in this field means that a similar result might not be guaranteed in every case where Congress seeks executive branch records. Nevertheless, while both limits on information sharing are subject to multiple variables and little judicial guidance, in both cases, exceptions exist that may provide Congress with an avenue to obtain at least some protected material..."
Special Counsel's Report