The U.S. Court of Appeals for the D.C. Circuit did a superb job on Tuesday in ordering disclosure of a few more pieces of the Mueller report into Russian interference in the 2016 election.
Writing on behalf of Democratic appointees David Tatel and Harry Edwards, Republican appointee Karen LeCraft Henderson carefully delineated which parts of the report should be newly released and which should remain redacted. Her decision’s law and logic were models of clarity and faithfulness to statutory text.
The Mueller report was released less than three years ago, but people may have forgotten the controversy over redactions ordered by then-Attorney General William Barr. Special Counsel Robert Mueller protested that Barr had mischaracterized his conclusions, and critics of President Donald Trump suggested the redactions unduly protected Trump, his aides, and his family.
BuzzFeed sued to force the release of the redacted material but lost the case in federal district court. The appeals court this week upheld some, but not all, of the district court’s decision protecting the information.
Relevant statutes listed two competing considerations for redacting parts of a criminal investigation. Citing case law, Henderson wrote that on the one hand, if prosecutors decide against indictment or criminal reference against an investigated person, “individuals have a strong interest in not being associated unwarrantedly with alleged criminal activity” because it could subject them “to embarrassment and potentially more serious reputational harm.”
On the other hand, especially in cases involving public officials, case law has shown it is of “significant public interest” to be apprised of “how the FBI and the [Department of Justice] carried out their respective statutory duties to investigate and prosecute criminal conduct.” The public interest is in the policy questions involved — in sum, in the reasoning behind “how the Executive carries substantive law enforcement policy.”
The latter legal considerations favor disclosure, while the former favors a form of privacy. Both considerations have roots in statutes and court precedents.
As Henderson explained, though, this is not an insoluble dilemma. For those “redacted passages containing personally identifying facts about individuals that are not disclosed elsewhere in the Report and would be highly stigmatizing to the individuals’ reputations,” the privacy concerns are paramount. Those passages, the court ruled, should remain redacted.
But for “redacted passages that primarily show how the Special Counsel interpreted relevant law and applied it to already public facts available elsewhere in the Report in reaching individual declination decisions,” the passages should be unredacted, with Mueller’s reasoning disclosed.
Indeed, Henderson wrote, some of the “redacted passages contain no new facts; they contain no new information or descriptions of conduct that have not been made public elsewhere in this very Report. The privacy interests, then, are not robust, as no additional reputational or stigmatizing harm can result from the disclosure of the information contained therein.”
In short, if the actual behavior of individuals in question has already been disclosed, they can’t be further harmed by letting the public see why prosecutors decided not to charge them. Transparency is in the public interest when it comes to “the Special Counsel’s legal analysis” because it “likely would ‘contribute significantly to public understanding of the operations or activities of the government.’”
For those not mentioned in the parts of the report already released publicly, the passages involving them will remain redacted.
This is a nuanced, balanced, and elegant solution. Assuming the Supreme Court doesn’t overrule the three-judge panel, the small subset of new information to be disclosed should help put to rest conspiracy theories from all quarters. The public benefit will be substantial.