David M. Dorsen

Opinion contributor

William Barr, President Donald Trump’s nominee for attorney general, gave assurances to the Senate Judiciary Committee this week that he would not interfere with special counsel Robert Mueller’s investigation of Trump team ties to Russia. He was far vaguer on what would happen to Mueller’s anticipated report when he received it.

My interpretation of Barr’s testimony is that he would not release Mueller’s report. Portions of that report, Barr said, would be excised because of national security, privacy and other concerns based on regulations and practice. He would not, however, release the balance with the excised portions blacked out, as Mueller has in publicly released court filings. Rather, Barr would write his own report based on Mueller's findings, and this alone is what he would make public. In addition to not seeing crucial parts of Mueller’s report, the public will not know the nature or extent of the deletions and changes.

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That state of affairs is obviously unacceptable. The public is entitled to know what is in the report, except the minimum that the law reasonably says should be withheld. There is no sure way to prevent Mueller’s conscientious and essential effort from being censored and distorted. There are, however, steps that can be taken by various persons to minimize both the likelihood and extent of the censorship and distortion.

Watergate and Pentagon papers show the way

First, the Senate should demand from Barr a firm commitment in writing to release the entire Mueller report other than portions that the law clearly prohibits from disclosure. While the hearing is over, no vote has taken place. This may not succeed.

Second, Mueller should disclose in court filings as much of the information that he will include in his report as he properly can. Substantial portions of the filings will undoubtedly be blacked out at the time of the filing, but perhaps they can be disclosed later. Those disclosures will be up to federal judges, however, not the Trump administration.

Third, people with access to the report should make and secrete copies. If and when the time comes that Barr does not release Mueller’s report, copies should be given to Congress or, as a last resort, leaked to the news media and, of course, widely disseminated.

The famous example of the Pentagon Papers and its publication by The New York Times, The Washington Post, and other newspapers provides a precedent. While the executive branch would try to hunt down the leakers, everything should be done to prevent their identification and prosecution. Nevertheless, this action will require some individuals to put their careers and freedom at risk.

Fourth, Americans should prepare to object forcefully if Barr fails to make Mueller’s report public. This item requires lengthier explanation.

Public protests and pressure shaped history

In October 1973, President Richard Nixon got rid of special prosecutor Archibald Cox, who had subpoenaed nine tape recordings Nixon made of conversations he had with aides on the subject of Watergate and said he would subpoena more. Only the attorney general could fire Cox, and Elliott Richardson resigned rather than fire Cox as Nixon ordered. Deputy Attorney General William Ruckelshaus also refused to fire Cox and likewise departed. Third in line, Solicitor General Robert Bork agreed to fire Cox (an action that later helped cost him advancement to the Supreme Court). Nixon announced both that Cox was fired and that the special prosecution force was disbanded.

Then a funny thing happened. The country erupted in protest. Television commentators excoriated Nixon’s action, which the press promptly dubbed “The Saturday Night Massacre.” People marched in the streets and cars blew their horns. Members of Congress introduced petitions of impeachment against Nixon.

When the White House and lawyers from the special prosecution force appeared several days later before Judge John Sirica, the no-nonsense judge overseeing the Watergate grand jury and prosecutions, the White House agreed to turn over to the special prosecutor the tapes he had subpoenaed. The office of the special prosecutor was resurrected, and a new (and aggressive) successor to Cox, Leon Jaworski, was placed in charge.

While the process was filled with trauma, the investigation of Nixon and his aides continued under Jaworski. Eventually, Nixon resigned on Aug. 9, 1974, and his top aides, former attorney general John Mitchell, former chief of staff H.R. Haldeman and former domestic adviser John Ehrlichman were tried and convicted of a number of crimes and sent to prison.

It was far from a sure thing, and it required many dedicated and principled individuals, including federal judges, to accomplish. And it certainly did not happen by accident.

David M. Dorsen, formerly assistant chief counsel of the Senate Watergate Committee and an assistant U.S. Attorney in the Southern District of New York, is the author of "The Unexpected Scalia: A Conservative Justice’s Liberal Opinions" and, most recently, "Moses v. Trump, a contemporary novel." Follow him on Twitter: @DavidDorsen