Securing Transparency and Salvaging Integrity in the Age of Trump

Time is running out to protect special counsel Robert Mueller’s investigation before it’s too late. According to acting Attorney General Matthew Whitaker, Mueller’s report could be imminent. And according to Whitaker’s likely replacement, Attorney General nominee Bill Barr, it’s no guarantee that the report will be authorized for release. The Trump administration’s repeated efforts to control or interfere with the special counsel’s investigation mean that the public cannot trust it to do the right thing with the Mueller report. Congress has the tools at its disposal right now to take immediate action to protect the integrity of the investigation and to ensure that the Trump administration does not bury its findings.

Last week, Republicans and Democrats on the Senate Judiciary Committee introduced timely, bipartisan legislation to protect the rights of Congress and the American public to access the final report of the special counsel findings. The legislation comes in the wake of Barr’s Senate testimony and written follow-up responses, in which he troublingly refused to commit to making Mueller’s final report public. In fact, Barr seemed to suggest that concerns for Trump’s privacy outweighed the public’s right to know.

The aptly named Special Counsel Transparency Act, introduced by Sens. Richard Blumenthal (D-Conn.) and Chuck Grassley (R-Iowa), would require that “all factual findings and underlying evidence” be provided to the House and Senate Judiciary committees and, critically, released to the public. The bill makes allowances for protecting truly private or classified information. Put simply, the bill solves a major problem revealed by Barr’s testimony: As currently written, the special counsel rules only require Mueller to report to the attorney general; the new law would add Congress and the public to the list.

This should not be necessary; under any analysis, the public interest in Mueller’s findings far outweighs the privacy or national security considerations that typically apply to DOJ investigative reports. However, Barr’s resistance to acknowledging the public interest signals that old norms and values may not be enough with this administration. For many, Barr’s statements that he might keep the Mueller report secret and draft his own “attorney general’s report” was a wake-up call. Members of Congress, the media and the public appear to have been operating under the expectation that Mueller’s report would become public at the end of his work. Apparently not, according to Barr and his reading of the DOJ regulations.

The information that Mueller has collected over the past two years should not be withheld from the American people unless absolutely necessary to protect intelligence sources and methods or truly private information. We cannot lose sight of the fact — already unanimously acknowledged by the intelligence community — that American democracy was attacked in 2016. Mueller’s investigation contains a significant counterintelligence component, which can only be fully effective if all Americans learn how they were hoodwinked in 2016 so they can fight back in 2020.  

Disclosure is also what the public wants. There is clear support for the investigation to continue by almost two to one. In democracy, we’re the boss. If the law needs to be changed to ensure the people’s will prevails, so be it.

Finally, it is heartening to see Sens. Blumenthal and Grassley working together for transparency and to stand up for Congress’ constitutional stature. As a country, we’ve come to understand congressional oversight as a purely partisan political arena. But the Constitution doesn’t see it that way. The Founders established a system of checks and balances and the power of Congress to demand information from the executive branch is a core aspect of the system.

As we embark on a new era of oversight in Washington, with the House preparing to conduct investigations into many aspects of the Trump administration, it would be a welcome development if Republicans and Democrats on congressional committees came together to stand up for Congress’ institutional prerogatives. Republicans in the House may not approve of all of the coming investigations, but if they have a legitimate factual and investigative purpose, all members should support Congress’ authority to pursue them.


Austin Evers is the executive director of American Oversight, founded in 2017 to promote accountability in government. Evers served most recently as senior counsel in the State Department for oversight and transparency matters.

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