Illustration by João Fazenda

Daniel Patrick Moynihan, the intellectual polymath who represented New York in the United States Senate for twenty-four years, developed a well-founded skepticism toward government secrecy. Bureaucrats and others, Moynihan knew, could always conjure reasons to keep information under wraps, and the ratchet of secrecy generally worked in only one direction. Secrets begat more demands for secrecy, at ever greater peril to the public’s right to know what was happening in its name. Secrecy, Moynihan wrote in his 1998 book of that title, thus became “a hidden, humongous, metastasizing mass within government itself.”

That swelling mass may yet envelop the Mueller report. When President Trump nominated William P. Barr to be Attorney General, late last year, it was clear that one of his principal responsibilities would be to determine how much of the forthcoming report from Robert Mueller, the Special Counsel, would be disclosed to the public. At each stage in the process, Barr has narrowed the range of information that he says he will allow the public to see. At his confirmation hearing, in January, he pledged that he would be guided by a commitment to “transparency.” Last month, though, after Barr received Mueller’s four-hundred-or-so-page report about possible ties between President Trump’s 2016 campaign and Russian interests, and the President’s attempts to cover them up, the Attorney General, on his own initiative, created a series of roadblocks to public disclosure.

Under the Department of Justice regulation that sets the rules for the release of a Special Counsel’s report, the Attorney General is supposed to consider the “interests of the public in being informed of and understanding the reasons for the actions of the Special Counsel.” But Barr erected a quasi-legal structure that gives him enormous leeway to censor much of the Mueller report. According to a letter he sent to congressional leaders, Barr established four categories that were off limits for public disclosure. They are: “Material subject to Federal Rule of Criminal Procedure 6(e) that by law cannot be made public”—that is, matters subject to grand-jury secrecy; classified information; matters relating to other pending investigations; and, finally, “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.”

The first category, about protecting grand-jury secrecy, sounds straightforward, but it isn’t. The Supreme Court has never precisely defined the scope of Rule 6(e). In its narrowest (and best) interpretation, it means that grand-jury testimony cannot be released to the public. But some courts have suggested that it covers any subject that was discussed in the grand jury—potentially a much broader category. Barr did not disclose what definition he plans to adopt, but a broad conception could keep substantial amounts of Mueller’s report out of public reach. Barr had the option of petitioning the federal district court in Washington, D.C., to relieve him of the demands of grand-jury secrecy. (Such a ruling allowed wide public disclosure of grand-jury matters during Watergate.) But there is no sign that he sought this kind of permission.

The classified-information category is the least controversial. Still, the intelligence agencies are notoriously overzealous in classifying their own information. (This is a major theme of Moynihan’s book.) If Barr were to defer to them on this issue, that act would virtually guarantee widespread deletions in the report.

The third area, concerning information about other investigations, such as those under way in the Southern District of New York, provides another expansive loophole for the Justice Department. Indeed, Mueller himself has already redacted significant amounts of information from his own court filings on this ground. Because prosecutors do not reveal the scope of ongoing investigations, there is essentially no way to check Barr’s work in this category; we will simply have to trust him. This area is a black box—and Barr controls its contents.

The fourth category is an invention on Barr’s part; there is no law or regulation prohibiting disclosures of this kind. Moreover, the words are subject to wide interpretation. What does “unduly” mean in this context? Who is a “peripheral” third party? What counts as an infringement on someone’s reputation? It’s all, apparently, up to Barr. And this category also raises the most provocative question. As is now well known, Justice Department policy prohibits the indictment of a sitting President. Thus, because Mueller cannot indict Trump, the President, by definition, becomes one of those third parties mentioned in the regulation. Considering this scenario, is it possible that Barr could also prohibit disclosure of any information about the President? This would be an outrage, but it’s a potential outcome of Barr’s four-part test.

The Attorney General also reported to Congress what he said were the principal conclusions from Mueller’s report. According to Barr, Mueller found no evidence of criminal collusion between the Trump campaign and Russia, but he apparently regarded the evidence on obstruction of justice by the President as too ambiguous to make a final call. News reports last week suggested that some members of Mueller’s staff think that Barr slanted the evidence in the report in order to make Trump look good. What is certain is that Barr took Mueller’s equivocating as an invitation to make his own decision to exculpate Trump. The Attorney General had no business volunteering such a judgment about an investigation he did not conduct, but, when it came to obstruction of justice, he could not resist riding a favorite hobbyhorse.

In June of 2018, while he was still a private citizen, Barr, of his own accord, wrote a nineteen-page memo to senior officials of the Justice Department asserting that, in light of the President’s inherent constitutional powers, Trump could not have obstructed justice. This memo probably played no small part in Trump’s decision to choose Barr in the first place. Barr has now turned his outsider’s judgment (which is likely wrong on the merits) into an official vindication of his new boss. In all, Barr has taken every possible step to lessen the sting of the Mueller report—and, so far, to block it from view altogether. Senator Moynihan was educated not only in the halls of academe but in the streets of New York, and he might well have reached an earthy conclusion about this Attorney General and his President: the fix is in. ♦