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Can a US president, by asserting executive privilege, national security interests, or through any other mechanism, censor or classify sections of a justice department document, such as the special counsel report, relating to an investigation of that president? Is there any precedent for this sort of action?

  • The OSC hasn't investigated that many presidents, so it's unlikely there would be a precedent for what you ask. – Fizz Mar 23 at 17:38
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    @Fizz there have been plenty of special counsel investigations of the the president. Obama was the only president since Nixon to not be investigated, provided you count the ongoing investigation after Nixon resigned as an investigation of Ford – De Novo Mar 23 at 18:32
  • That's actually a good point. I think I found the report most likely to have had some material censored, (the Walsh report) but I don't know if any material in it actually has ever been censored. So politics.stackexchange.com/questions/39738/… – Fizz Mar 23 at 18:38
  • @Fizz So, maybe precedent for the Mueller report will be more difficult than I expected... Walsh didn't release until 1993 after both Reagan and Bush had left office. – De Novo Mar 23 at 18:58
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Possibly

At least, some politicians seem to think it's a possibility:

Rep. Karen Bass, D-Calif., another member of the Judiciary Committee, told USA TODAY the report "should not be censored by the attorney general or by the White House. The president is the subject of the report. To hand it over to the person who is the subject of the report and you expect a transparent process? I don’t think so.”

People on Trump's side have also said they may censor it by appealing to executive privilege:

Trump's lawyer Rudy Giuliani says the president’s legal team likely plans to use executive privilege to block the release of parts of special counsel Robert Mueller’s report on the Russia investigation. In comments to The New Yorker published Monday, Giuliani said Trump’s original legal team had secured a deal with Mueller allowing the White House to object to the public disclosure of information in the report. Asked whether the White House would indeed object to the report, Giuliani said, “I’m sure we will.”

At the moment, this may not matter, since Trump is calling for the report to be released to the public. However, his honesty in this regard, or whether he'll still say this after seeing the report, is unclear.

  • Could you expand on whether there is a legal basis for censoring the report, or even better, any relevant precedent? Maybe I should ask on Law.SE If that's what I'm looking for in an answer, though – De Novo Mar 22 at 23:55
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    @DeNovo - I tried to find a precedent, but I couldn't. As for executive privilege, I've seen different legal arguments. At the very least his statements might be subject to such a claim, but not his actions. Except Giuliani probably will try to censor both, and he might succeed. Then other people argue that he has already waived executive privilege, but I don't know how reliable that argument is. – Obie 2.0 Mar 22 at 23:57
  • Could you edit your answer to include that? – De Novo Mar 23 at 0:04
  • Note that Barr put down that Giuliani idea "[Barr] slapped down President Trump’s TV lawyer, Rudy Giuliani, who recently suggested the White House might try to “correct” parts of the Mueller report before it’s publicly released. “That will not happen,” Barr deadpanned." news.vice.com/en_us/article/pa573k/… But Barr didn't exlclude he might do that himself. – Fizz Mar 24 at 6:12
  • Word to the wise: It is in the President's best political interest to continue the investigations and have the release of the report in some nebulous future. However, next best thing is to have rumors circulating that he may censor it. I'm not sure if it is in the best interest of the people. – Frank Cedeno Mar 25 at 13:51
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Even if the President's direct authority to censor the report is unclear, the Attorney General (who may be removed at will the President) does have this power to censor any parts of Special Counsel report if it is released to the public at all:

Ultimately, whether or not the report produced by the special counsel Robert Mueller's team is made public will be at the discretion of Attorney General William Barr. In addition, Barr will be able to withhold whatever information he deems should not be made visible, even if he does release a partial version of the report to Congress or the public.

I should also point out that the House has voted nearly unanimously (with four abstentions), albeit in a non-biding resolution, for the Mueller report to be released to the public. It's not clear what the political fallout would be if Barr (by himself or prodded from the White House) chose to censor parts of the report... unless he had strong legal reasons to do that, e.g. not disclosing material that would be classified under national security laws.


And whether the president himself can do it, I think it's a bit of a legal vacuum; this is an older analysis from when the Ethics Act had not been replaced by 28 CFR 600, but still the main issue is that CIPA basically ignores the "split-personality" that the existence of special/independent council induces on the executive branch:

CIPA is silent on the question of independent counsel. [...] From the standpoint of CIPA, security classification decisions occur in a black box. Referring to the decision-maker as the "United States" throughout, the Act does not specify whether a classification decision belongs to the President alone or might result from the judicial resolution of a dispute between the Chief Executive and an independent counsel (an inferior executive officer)" exercising his or her contestation power under another statute. Section 6(e)(1) of CIPA does specify that in order to prevent a defendant from disclosing classified evidence, the United States must file with the court an "affidavit of the Attorney General objecting to disclosure," but the "United States" and not the Attorney General remains the controlling power here, and section 6(e)(2) "afford[s] the United States an opportunity . ... to withdraw its objection to the disclosure" with no reference to the Attorney General's opinion at all. In addition, the Act authorizes the United States to prevent only the disclosure of classified evidence by a defendant; it says nothing of preventing disclosure by a prosecutor.

CIPA does not contemplate and was not intended to handle disputes about the propriety of a classification, or the split-personality "United States" that exists during prosecutions by independent counsel.

The analysis goes on to argue that a strict interpretation of CIPA (allowing the president to arbitrarily classify material to the detriment of the independent council) goes against the broad provisions enacting the latter (28 U.S.C. § 594(a)(6)--the Ethics Act, now lapsed). I guess a similar conflict argument could be raised with the newer 28 USC 600, but I haven't seen it explicitly somewhere. I suppose such a conflict could end up in the courts.

The analysis also goes on to posit that the independent council challenging the president on such a matter would fit somewhere on the continuum between Reynolds and New York Times Co. but no such case has been actually brought to the courts (i.e. special or independent council has yet to sue the president challenging his classification decision[s].)


As for precedents through "other mechanisms"... Reagan did seek to have the Walsh final report (on the Iran Contra) modified before its publication; but this was through a court motion; Reagan wasn't president anymore at the time of these court proceedings (1993), so YMMV if this qualifies as a precedent. From AP news ("North purges name from files", Feb 9, 1994, by Pete Yost):

A three-judge panel of the U.S. Court of Appeals released hundreds of pages of previously secret court documents filed in December by former President Reagan and former Attorney General Edwin Meese III seeking to block the Jan. 18 release of the prosecutor's [Walsh's] report.

[...]

Reagan asked that the court refuse to release Walsh's report "to the public or any other entity or person" unless it was rewritten to remove "opinions, conclusions and innuendo." The sources said North made similar objections.

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This is, of course, a developing story, but per the Attorney General's March 29, 2019 letter to the House Judiciary Committee Chair

Although the President would have the right to assert privilege over certain parts of the report, he has stated publicly that he intends to defer to me and, accordingly, there are no plans to submit the report to the White House for a privilege review.

So, the head of the US Justice department, at least, believes the President can censor a report by the special counsel on an investigation of that President. (i.e., Barr's answer to this question is "Yes, the President can do that"). He notes that Trump, in particular, has publicly stated he won't do that.

Re: redactions by the Justice department, presumably independent of any White House direction, Barr's letter states they are redacting the following (reformatted for easier reading):

  1. Material subject to Federal Rule of Criminal Procedure 6(e) that by law cannot be made public
  2. Material the intelligence community identi?es as potentially compromising sensitive sources and methods
  3. Material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices
  4. Information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.
  • With respect to Item number 2, most intelligence documents are owned by the agency that originated them and are released subject to their authorities. As the intelligence community are made of executive agency, the President does have the ability to declassify anything he sees fit to declassify, as he is the highest authority of any Executive Agency. – hszmv Apr 1 at 15:34

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