To disclose or not to disclose

Deputy Attorney General Rod Rosenstein said yesterday that the Justice Department should not reveal information about people it does not charge with a crime. The Washington Post views this as “an ominous sign for those hoping the department will soon disclose the closely held details of special counsel Robert Mueller’s probe of President Trump and his campaign.”

In reality, Rosenstein is unlikely to have any say about what the Justice Department does and does not reveal about the Mueller probe. He’s on his way out. The new Attorney General, William Barr, will make the decision.

But Rosenstein’s view that prosecutors shouldn’t reveal information about people it does not charge is Justice Department dogma. And it makes sense in almost all DOJ cases. If the Justice Department concludes you didn’t commit a crime, or isn’t willing to try to prove you did, it should stop talking about you.

However, when the person under investigation is the U.S. president or a strong candidate to become president (like Hillary Clinton in 2016), special considerations come into play. The public has a strong interest in knowing more about such individuals than simply whether they are going to be charged by the Justice Department with a crime. Our democracy is better served if the public receives additional information.

In Hillary Clinton’s case, a mere statement by the DOJ that she wasn’t going to be charged would have been insufficient, in my view. It would have enabled Clinton to claim there was nothing to the email scandal and that the whole thing was a witch hunt.

Such claims would have been highly misleading. As then-FBI Direction Comey made clear, Clinton had engaged in serious misconduct with national security implications that pretty much met the statutory definition of a crime. She escaped being charged not because there was “nothing to see here,” but because of Comey’s gloss on the criminal statute at issue.

Comey’s explanation to the public offended Rosenstein. Indeed, he considered it a basis for firing Comey, and said so in a memorandum to the president. But without Comey’s explanation, the American public would have been denied important information about Hillary Clinton that some viewed (reasonably) as relevant to her fitness for the presidency.

In the case of President Trump, the argument for disclosure is, if anything, even stronger than in Clinton’s case. Trump isn’t just a candidate for president; he is the president.

A considerable amount of the public’s money has been spent (wasted, some would say) on the Mueller investigation. It’s obvious to me that the public should learn more about the fruits of the investigation than just whether Trump is going to be criminally charged (something that arguably cannot happen to a sitting president).

What are the facts about Russian interference in the 2016 election? What level of involvement, if any, did Trump have with the Russians during the campaign? Did he “collude” in ways that fall short of criminality? Americans should know what Mueller concluded about these questions and what his conclusions are based on.

There are limits to what the DOJ can disclose. Classified information, of course, cannot be revealed.

There are also limits to what should the DOJ should disclose. As Rosenstein said, just because something is in an investigative file doesn’t mean the information is accurate. Revealing Mueller’s findings and the basis for his findings doesn’t entail disclosing everything that led to the findings, and certainly does not entail disclosing information that was collected but did not lead to them.

The presumption, though, should be in favor of transparency and disclosure when we’re dealing with investigations into those who seek or hold our highest national office. Normal DOJ practice about what to disclose shouldn’t govern extraordinary cases like Clinton’s and Trump’s.

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