Demand for Mueller ‘scope’ memo threatens principles of proper DOJ oversight

As a former chief oversight counsel for the House Judiciary Committee, I strongly support vigorous congressional oversight of the Department of Justice. While I worked for the Committee, I helped make significant and wide-ranging demands for information from DOJ on a number of issues, from reports of surveillance abuse by FBI officials to the actions of the Civil Rights Division to the firing of U.S. Attorneys during the Bush administration.

But there are important limits on Congressional oversight, particularly when it comes to ongoing federal criminal investigations. Those limits have clearly been exceeded by a recent request from two individual members of Congress.

{mosads}Last month, two individual House members, Rep. Mark Meadows (R-N.C.) and Rep. Jim Jordan (R-Ohio), wrote to Deputy Attorney General Rod Rosenstein and demanded an unredacted copy of his August 2, 2017 memo to special counsel Robert Mueller outlining the scope of the allegations within the DOJ criminal investigation at the time of Mueller’s appointment in May.

In response to a motion filed by former Trump campaign manager Paul Manafort to dismiss one of the cases against him as beyond the proper scope of the Mueller investigation, Mueller’s office filed in court an edited version of the August 2 memo that described the specific allegations against Manafort that criminal investigators had reached as of the time of Mueller’s appointment. Another page or so of allegations, presumably relating to alleged crimes that Mueller was still investigating and had not yet determined whether to prosecute, were redacted from the memorandum when it was filed in court.

Pence tells Mueller to “wrap up” his investigation: https://t.co/KrF4TTIQ3W pic.twitter.com/thv79JTPPi

— The Hill (@thehill) May 10, 2018

Now Meadows and Jordan want the entire memo.

Their request is out of bounds for a number of reasons. On April 30, Assistant Attorney General Stephen Boyd explained why DOJ could not provide access to the unredacted memo, laying out entirely appropriate rationales.

In particular, under both Republican and Democratic administrations, DOJ has had a long-standing policy of not providing information to Congress or the public about pending criminal investigations. Revealing such information, Boyd explained, would “threaten the integrity of those investigations.” In the words of a 2000 DOJ letter referred to as the “Linder letter,” disclosing the confidential allegations that Mueller (or any other DOJ prosecutor) is investigating  before charges are actually brought would be like publishing a “road map” of the investigations — which, if they came into the possession of possible targets through “inadvertence or a deliberate act,” would “seriously prejudice law enforcement.” 

What’s more, if some of the allegations prove unfounded and not worth prosecuting, disclosing them now could significantly harm the reputation and privacy of individuals who prosecutors later agree have done nothing wrong.

This DOJ policy goes back to the beginning of the 20th century.

As a DOJ memo during the Reagan administration explained, providing information about active criminal investigations to Congress, even to congressional committees as part of an officially authorized investigation (which the Meadows-Jordan letter is not), would place members “in a position to exert pressure or attempt to influence the prosecution” of criminal cases, and would “significantly damage law enforcement efforts and shake public and judicial confidence in the criminal justice system.”

First person sentenced in Mueller probe reports to prison https://t.co/cZa5UXBANa pic.twitter.com/sKfFzqP68Y

— The Hill (@thehill) May 9, 2018

Some have suggested, with good reason, that the real purpose of the Meadows-Jordan request may be to compromise or impede the Mueller investigation. Others have pointed out that DOJ’s refusal to provide the information could be used as an excuse for Trump to fire — or for the House to try to impeach — Deputy Attorney General Rosenstein. Meadows has even stated that the House Freedom Caucus has already drawn up articles of impeachment against Rosenstein, although experts have explained that impeachment of such an executive branch official has not been pursued for over a century and has no proper basis.

But whatever the reason for the Meadows-Jordan request, it is critical to the future of proper Congressional oversight and to the integrity of our federal criminal justice system that members of Congress accept DOJ’s principled position — and go on to conduct other, appropriate oversight of the work of the Justice Department and other federal agencies.

Elliot Mincberg is a senior fellow at People For the American Way and a former chief oversight counsel for the House Judiciary Committee.