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Rescind 28 CFR § 600.9(c)—Eliminate Any Expectation That The AG Will Publicly Release The Special Counsel’s Report

What do James Comey, Robert Mueller, and Robert Hur have in common? They all made the decision not to seek criminal charges against a prominent politician, but in doing so, they revealed damaging information about that politician. For example, FBI Director Comey’s comments about Hillary Clinton’s email server may have influenced the outcome of the 2016 election. Similarly, Special Counsel Robert Mueller’s report led to an impeachment inquiry for President Trump, and Special Counsel Robert Hur’s report about President Biden’s mental state could potentially harm his chances in the upcoming election. Despite not pursuing charges, these federal law enforcement officials publicly explained their reasoning for not doing so. While transparency is important, I believe that releasing a declination report for someone who will not be charged is a mistake. Instead, prosecutors should only speak through indictments or lack thereof. This brings me to the title of this post. According to current special regulations, the special counsel must provide the Attorney General with a confidential report explaining their decision to prosecute or not. While this requirement is necessary for the Attorney General to understand the reasoning behind the decision, the regulations also create an expectation that the report will be made public. I believe this provision is a mistake. If the special counsel recommends an indictment and the individual is indicted, the indictment should speak for itself. If the special counsel declines to recommend an indictment, the decision should simply be left at that and everyone should move on. There is no actual mandate to release the report, but this provision creates an expectation that it will be released. Rescinding this provision would have several benefits. First, the special counsel would not feel pressured to write for the history books. A brief memo explaining their declination decision would suffice, which could also expedite the decision-making process. Second, the Attorney General would not have to consider invoking executive privilege and redacting parts of the report. This would allow the special counsel to be more forthright in their recommendations. Additionally, it would prevent lengthy litigation over redactions, as seen in the case of Attorney General Barr. Ultimately, removing this provision would be beneficial for all parties involved. 

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