A Guide to Barr’s Redactions to the Mueller Report

By MOLLY CLAFLIN and DANIEL McGRATH
American Oversight

The Mueller report has finally been released to the public — at least in part — bringing with it revelations about the great lengths to which Russia went to put Donald Trump in the Oval Office. The report seems to show that although Trump may not have completed the steps to be criminally liable for conspiracy against the United States, he came dangerously close.

But only “some of” the report is available. Much of it is still hidden from view. Barr has redacted key portions of the report, exempting four categories of material that are essentially equivalent to four Freedom of Information Act (FOIA) exemptions.

Given the public’s extraordinary interest in the disclosure of the investigation’s findings, Barr should make every effort to disclose as much of the Mueller report as possible, redacting only what is absolutely necessary. The report seems to punt the determination of whether Trump obstructed justice to Congress for a political remedy, and Barr has said he would make a substantially less redacted version available to certain members of Congress as they contemplate a political remedy. But he said that he would not lift all redactions, or make an unredacted version available to all members.

As Congress moves to determine the correct remedy for Trump’s actions, the American people can finally see for themselves some of what Mueller and his team were investigating. Below, we explain the different justifications Barr has put forward for the redactions in the report, which exemptions Congress will be able to surmount, and whether — generally speaking — Barr should go further to release information within those exemption categories.

Grand Jury Material: Rule 6(e)

Barr has repeatedly noted that, as he received it, each page of the Mueller report was marked, “may contain material protected under Fed. Crim. P. Rule 6(e).” Rule 6(e) prevents certain individuals, including government attorneys, from disclosing matters that were before a grand jury, including grand jury testimony. These redactions are typically redacted under FOIA Exemption 3, which provides for withholding information when another statute prevents its disclosure.

Although there may be a reasonable basis for withholding Rule 6(e) material, Barr can and should take action to ensure that the public receives as much information as possible, such as ensuring that the 6(e) redactions have been applied as narrowly as possible. The mere fact that a grand jury has seen certain evidence does not prevent that evidence from being disclosed — it only prevents disclosure of information that would reveal the investigation, its deliberations, or its members’ identities.

Second, Barr can seek court approval to unseal the grand jury information contained in the Mueller report. The special prosecutor during the Watergate investigation successfully sought court approval to unseal grand jury information in light of the immense public interest in the House Judiciary Committee’s ability to obtain unfettered access to the grand jury report for its investigation.

However, there are two complications to disclosing the information this way. First, Barr has reportedly not gone to the federal judiciary to ask for this accommodation. Second, a federal court of appeals ruled just this month that judges do not have inherent authority to release grand jury material when they deem the public interest requires disclosure. This ruling, which is in tension with previous court decisions, may make it more difficult to gain access to Rule 6(e) material. Even so, Barr should petition a federal judge to permit him to release the grand jury information in the Mueller findings due to the overwhelming public interest in disclosing the report, and transparency groups should be ready to appeal to test the recent appeals court ruling.

Can Congress get the 6(e) materials, even if the public cannot?

Not unless a federal judge approves it. Without court approval, this sort of material is completely protected from disclosure — even to Congress. But Barr, as in the Watergate case mentioned above, could ask a federal judge to give Congress access to the material. Barr has committed to giving a select group in Congress access to other redacted material, but not to grand jury information. And even if federal courts refuse to unseal the grand jury material at issue here, lawmakers could bring the witnesses Mueller interviewed before Congress, and ask for much of the same evidence — essentially replicating the Mueller investigation using the redacted report as a roadmap.   

Privacy Protections

Barr has redacted some information — including, apparently, the identity of certain individuals — on the basis that it is necessary to protect individuals’ privacy. This type of material is sometimes withheld under FOIA Exemptions 6 and 7(C), which are intended to protect privacy interests. Exemption 7(C) exists specifically to protect the privacy of people identified in law enforcement files, and its application is often justified to protect law enforcement informants from harassment and to prevent reputational harm to individuals who have been investigated but ultimately were not charged with a crime.

But both of these exemptions require that the individuals’ privacy interests be weighed against the public interest in disclosure of the information. Here, many of the individuals likely at issue in the report — Roger Stone, Carter Page, and other Trump advisers — have already spoken publicly about their involvement in the campaign and investigation and therefore have diminished privacy interests.

In addition, the public’s interest in understanding the findings of the special counsel’s investigation of Russian interference in a U.S. presidential election — and whether the president and his campaign were involved — is so great that Barr should only redact information under Exemptions 6 and 7(C) in the most limited of circumstances. It is unclear whether Barr has considered the magnitude of that public interest in redacting material under these exemptions.

Can Congress get the information withheld under privacy protections?

Likely yes. While this material may not be publicly released, Congress may request to see the material withheld under these exemptions. The Department of Justice will often accommodate Congress by permitting congressional investigators to view the material “in camera,” meaning Congress will have the ability to view, but not take possession of, a version of the report without these redactions.

Classified Sources and Methods

Barr has withheld some information on the basis that it would disclose “investigative techniques” or “sources and methods.” This appears to indicate that Barr is justifying withholding this information on the grounds that it is classified material, which is often withheld under FOIA Exemption 1. Classified information is regularly and routinely protected from public view, as disclosing it could put intelligence operations and personnel in harm’s way. We expect there is legitimately classified information in the report — Mueller’s investigation was at heart a counterintelligence probe, examining the relationship between Russian election interference and Trump campaign associates. Barr’s initial letter does not mention the counterintelligence findings — that is, whether Trump or those around him were compromised by a hostile foreign power, and to what extent.

However, if some of this information has already been disclosed by the government — or “officially acknowledged” — Barr should release additional information to the public if the information is no longer truly secret and disclosure wouldn’t cause harm to national security or foreign policy. In addition, Barr could request certain information to be declassified. The attorney general has original classification authority, and therefore could choose to declassify some information. The FBI did this with respect to the Carter Page FISA warrant that it released to Congress last year. Though much of those materials were originally classified, the administration decided to declassify sensitive materials related to Page and the Mueller probe. Barr could do the same here.

Can Congress see the classified information?

Yes. Even if Barr decides not to declassify the materials, the Intelligence committees in Congress have the right to request and view the materials. Those committees routinely view classified information and are well-equipped to investigate while protecting sensitive sources and methods.  

Protecting Ongoing Matters

Barr’s redactions of some portions of the report on the basis that they would cause harm to ongoing matters, material usually withheld under FOIA Exemption 7(A), are particularly telling. Exemption 7(A) allows the government to withhold information that could interfere with ongoing investigations or prosecutions. Even though Mueller has concluded his work, his investigation spun off several other continuing investigations that are to be prosecuted by other parts of the Justice Department, such as the U.S. Attorney for the Southern District of New York.

Barr and the Justice Department, however, will at some point have to identify to various requesters the ongoing investigations that could be harmed to keep this information from being released. And Barr can’t keep this information from the public forever. Once the relevant investigations and prosecutions conclude, the government won’t be able to justify withholding it.

Can Congress see material at issue in ongoing investigations?

Likely yes. There is precedent for Congress receiving material that is part of ongoing investigations. While there is concern with congressional oversight interfering with ongoing law enforcement investigations, there are numerous instances of the Justice Department being forced to turn over materials at issue in pending investigations, from the Teapot Dome scandal to Watergate. This is in part because Congress has the right to investigate the government’s conduct in criminal and civil litigation, and Congress’ oversight responsibilities do not diminish simply because the executive branch’s investigation is ongoing.

Related Blog Posts

October 4, 2019

News Roundup: The Public Needs Answers

Central Intelligence Agency, Department of Energy, Department of Homeland Security, Department of Justice, Department of Labor, Department of State
Investigation Update
News
September 25, 2019

American Oversight Statement on Impeachment Inquiry

Congress
Investigation Update
News
September 20, 2019

News Roundup: Trump, Giuliani, and Ukraine

Administration for Children and Families, Agency for International Development, Consumer Financial Protection Bureau, Customs and Border Protection, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Department of Justice, Department of State, Department of the Treasury, Department of Transportation, Equal Employment Opportunity Commission, Federal Bureau of Investigation, Federal Reserve, Immigration and Customs Enforcement, National Institutes of Health, Starr County - Texas, Substance Abuse and Mental Health Services Administration, Texas Attorney General, Texas Secretary of State, U.S. Army Corps of Engineers
News
September 19, 2019

Trump’s Obstruction of Congressional Oversight Has Been Unprecedented — Now We’re Suing the Administration for Stonewalling Our Investigation

Department of Commerce, Department of Housing and Urban Development, Department of Justice, Department of the Treasury, General Services Administration
Investigation Update
September 12, 2019

New Lawsuit Seeks State Department Records of Jared Kushner’s Middle East Trips

Department of State
Investigation Update
September 4, 2019

Lawsuit Seeks Records from Investigation into Potential Trump Campaign-Finance Violations

Department of Justice, Federal Bureau of Investigation
Investigation Update
August 30, 2019

News Roundup: Remain in Mexico’s Harmful Effects and Trump’s Dangerous Impatience

Centers For Medicare and Medicaid Services, Customs and Border Protection, Department of Education, Department of Health and Human Services, Department of Homeland Security, Department of State, Department of the Interior, Environmental Protection Agency, Florida House of Representatives, Florida Senate, Immigration and Customs Enforcement, U.S. Geological Survey
News
August 26, 2019

American Oversight Sues for Records of Trump Administration Investigations of Hillary Clinton and the Russia Probe

Department of Justice
Investigation Update
August 16, 2019

News Roundup: The Hatch Act and Freedom of Speech

Citizenship and Immigration Services, Department of Agriculture, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Labor, Department of State, Department of the Treasury, Department of Transportation, Office of Management and Budget, Office of Special Counsel
News
August 13, 2019

AFGE Union Sues to Protect the Speech Rights of Federal Employees

Office of Special Counsel
News
August 1, 2019

New Lawsuit in Investigation of Ivanka Trump and Jared Kushner’s Use of Military Transport

Department of the Treasury
Investigation Update
July 26, 2019

News Roundup: Mueller Speaks

Bureau of Industry and Security, Centers For Medicare and Medicaid Services, Department of Commerce, Department of Defense, Department of Education, Department of Health and Human Services, Department of Homeland Security, Department of Justice, Department of State, Department of the Army, Department of Veterans Affairs, Federal Communications Commission, Food and Drug Administration, Immigration and Customs Enforcement, National Institutes of Health, Office of Management and Budget, Office of National Drug Control Policy, Substance Abuse and Mental Health Services Administration
News
July 17, 2019

American Oversight Sues for Betsy DeVos’ Emails Sent with Personal Account

Department of Education
Investigation Update
June 21, 2019

News Roundup: Hicks, Barr, Ross and Congressional Oversight

Customs and Border Protection, Department of Commerce, Department of Education, Department of Homeland Security, Department of Justice, Department of the Interior, Department of the Treasury, Department of Transportation, Federal Reserve
News
May 31, 2019

News Roundup: Elaine Chao’s Stocks, Trump’s Handwritten Notes, and the Administration’s Communications with the NRA

Department of Education, Department of Health and Human Services, Department of Justice, Department of State, Department of the Interior, Department of the Treasury, Department of Transportation, Department of Veterans Affairs, Small Business Administration
News
May 3, 2019

News Roundup: Above the Law

Congress, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Department of Justice, Department of State, Department of the Interior, Department of the Treasury, Department of Veterans Affairs, General Services Administration, Office of the U.S. Trade Representative
News
May 1, 2019

The Imperial Presidency and the End of Congressional Oversight

Congress, White House
News
April 29, 2019

The Dangers of Constitutional Hardball

Congress, Department of Justice, White House
News
April 17, 2019

Why Congress — and the American People — Deserve to See Trump’s Tax Returns

Congress, Department of the Treasury, Internal Revenue Service, White House
News
April 16, 2019

We Want to Know How the Justice Department Found the Clinton Investigation Directive — Months After It Said It Didn’t Exist

Department of Justice
Investigation Update
April 15, 2019

Barr Must Give Congress Mueller’s Investigative Work, Not Just His Report

Congress, Department of Justice
News
April 12, 2019

News Roundup: DeVos, Mnuchin, Barr Testify in Congress

Bureau of Safety and Environmental Enforcement, Congress, Council on Environmental Quality, Department of Defense, Department of Education, Department of Health and Human Services, Department of Homeland Security, Department of Housing and Urban Development, Department of State, Department of the Interior, Department of the Treasury, Environmental Protection Agency
News
April 11, 2019

William Barr’s Claims of Spying on the Trump Campaign Run Up Against Lack of Evidence

Department of Justice
Investigation Update
April 5, 2019

News Roundup: Turning to the Courts

Congress, Department of Agriculture, Department of Defense, Department of Health and Human Services, Department of Housing and Urban Development, Department of Justice, Department of the Interior, Department of the Treasury, Department of Transportation, Environmental Protection Agency, Federal Aviation Administration, Federal Housing Finance Agency, Food and Drug Administration, General Services Administration, National Aeronautics and Space Administration, National Oceanic and Atmospheric Administration, Office of Management and Budget, White House
News
April 3, 2019

The Trump Administration’s Disrespect for Constitutional Checks and Balances Earns It Congressional Subpoenas

Congress, White House
News
April 3, 2019

What Congressional Subpoena Power Means for Oversight

Congress, White House
News
March 29, 2019

News Roundup: The Mueller Investigation Is Over, But the Swamp Is Thriving

News
March 25, 2019

The Corruption Continues: Mueller Has Finished His Work. American Oversight Has Not.

News
March 13, 2019

Two Years of American Oversight

News
March 12, 2019

Investigating the Trump Administration’s Efforts to Sell Nuclear Technology to Saudi Arabia

Department of Commerce, Department of Defense, Department of Energy, Department of State, Department of the Treasury, International Trade Administration, Office of the U.S. Trade Representative
News
March 9, 2019

Sessions Letter Shows DOJ Acted on Trump’s Authoritarian Demand to Investigate Clinton

Department of Justice
Investigation Update
News
March 4, 2019

FBI Headquarters Investigation: Agencies Refusing to Search for Records of Trump Interference to Protect Hotel

Investigation Update
February 28, 2019

At Least Fourteen Federal Agencies Have Created No Guidance for Spending Taxpayer Money at Trump Properties

Investigation Update
February 27, 2019

Lying to Congress Rarely Results in Charges — Until Now. Here’s How Others in Trump’s Circle Could Be in Trouble

News
February 8, 2019

News Roundup: The First Real Confrontation Between the Trump Administration and Congressional Oversight

News
February 7, 2019

Open Questions for Acting Attorney General Matthew Whitaker

News
February 7, 2019

What to Know If Whitaker Tries to Assert Executive Privilege

Department of Justice
Investigation Update
February 1, 2019

Congressional Oversight 2019: Calendar of Committee Hearings

News
January 25, 2019

News Roundup: Shutdown Ends Before Hearings Begin

News
January 19, 2019

Republicans’ Threats to Boycott Congressional Investigation Jeopardize Their Own Credibility — Not the Investigation’s

News
January 18, 2019

News Roundup: Two Troubling Inspector General Reports

Department of Health and Human Services, Department of Homeland Security, General Services Administration
News
January 17, 2019

Investigating Trump’s Failed Response to Hurricanes in Puerto Rico

Federal Emergency Management Agency
Investigation Update
January 10, 2019

Acting AG Whitaker Can’t Avoid Congress Much Longer

Department of Justice
News
January 4, 2019

News Roundup: New Year, New Congress, More Oversight

News
January 3, 2019

Government Site Attached to Trump Hotel Stays Open Despite Shutdown and We Want to Know Why

News
January 3, 2019

Amplifying Oversight in 2019 — Starting Today

News
December 31, 2018

New Emails Show Senior HUD Official Cited Trump Family in Personnel Dispute

Department of Housing and Urban Development
News
December 27, 2018

Countdown to Oversight in 2019

News
December 20, 2018

How FEMA Learned from Ben Carson’s $31,000 Dining Set Purchase

Federal Emergency Management Agency
Investigation Update
December 10, 2018

Wait, There’s More: News of Another Administration Official Using Personal Email

Environmental Protection Agency
News
October 23, 2018

New Lawsuit Seeks Details of White House, Trump Organization Involvement in FBI Headquarters Decision

Department of Justice, Federal Bureau of Investigation, General Services Administration, Office of Management and Budget
Investigation Update
September 19, 2018

Investigation Update: Loyalty Tests and Retaliation

Investigation Update
March 14, 2018

New Lawsuit: How Much are Cabinet Officials Spending on Office Upgrades

Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Justice, Department of Labor, Department of State, Department of the Interior, Department of the Treasury, Department of Transportation, Department of Veterans Affairs, General Services Administration, Office of Management and Budget
Investigation Update
March 14, 2018

New Emails Show Secretary Carson Knew About $31,000 Table

Department of Housing and Urban Development
Investigation Update
February 23, 2018

Investigation Update: Swamp Airlines – Private Jets at Taxpayer Expense

Investigation Update
February 16, 2018

Ethics Watchdog Calls for Investigation of Pruitt’s Expensive Travel Habits

Environmental Protection Agency
Investigation Update
February 12, 2018

American Oversight Sues DOJ Over Decision to Reopen Uranium One Investigation

Department of Justice
Investigation Update
February 6, 2018

Voter Fraud Commission Asked Texas to Highlight Hispanic Surnames in Voter Data

White House
Investigation Update
January 26, 2018

Lawsuit Seeks Evidence of Political Influence in DOJ Investigations

Department of Justice
Investigation Update
December 7, 2017

FBI Records Call Into Question Sessions’ Claims About Security Clearance Instructions

Department of Justice, Federal Bureau of Investigation
Investigation Update
November 16, 2017

American Oversight Statement Regarding DOI Report on Zinke Travel

Department of the Interior
Investigation Update
October 11, 2017

American Oversight Investigates Trump Administration Attacks on Free Press

Federal Communications Commission
News
September 25, 2017

Emails Show Ivanka Trump Used Personal Email Account at White House

Department of Labor, Small Business Administration
Investigation Update
September 21, 2017

Did our government spend big bucks to install Big Buck Hunter? We’re going to find out.

Department of the Interior
Investigation Update
September 20, 2017

American Oversight Launches Investigation into Secretary Price’s Use of Private Jets for Official Travel

Department of Health and Human Services
Investigation Update
September 12, 2017

New Lawsuit: Did the FBI Really Advise Sessions to Omit Russian Contacts?

Department of Justice, Federal Bureau of Investigation
Investigation Update
September 7, 2017

Investigating EPA’s Attacks on a Journalist

Environmental Protection Agency
Investigation Update
September 2, 2017

DOJ Confirms Trump Lied in “Wiretap” Tweets

Department of Justice, Federal Bureau of Investigation
Investigation Update
July 11, 2017

Investigation of Trump Administration Actions and the AT&T-Time Warner Merger

Department of Justice
News
May 16, 2017

American Oversight Demands Release of Comey-Trump Memos

Department of Justice, Federal Bureau of Investigation
Investigation Update
May 12, 2017

Letter to Burr and Warner: Senate Should Request Trump-Comey Tapes

Department of Justice, Federal Bureau of Investigation
Investigation Update
May 10, 2017

Statement on the Firing of FBI Director Comey

Federal Bureau of Investigation
Investigation Update
May 10, 2017

Ethics Watchdog Calls for IG Investigation of Sessions for Violating Recusal

Department of Justice, Federal Bureau of Investigation
Investigation Update
April 19, 2017

American Oversight Sues DOJ for Release of Trump Tower Wiretap Records, Russia Investigation Documents

Department of Justice, Federal Bureau of Investigation, White House
Investigation Update
April 7, 2017

Updated: American Oversight Investigates DHS Attempt to Stifle Online Criticism

Department of Homeland Security
News