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'Confidential' in name only: Merrick Garland's delicate decision to release the Hur report
In theory, the attorney general could have kept the report secret. In practice, he had only one option. If AG Garland did not release the Hur report, it was going to be either leaked or disclosed by the GOP in a hearing which would give the report far greater exposure and coverage.
Link to tweet
https://www.politico.com/news/2024/02/09/garland-decision-release-hur-report-00140806
The White House is livid over the Justice Department’s release of a special counsel report that painted a devastating portrait of Joe Biden. But Attorney General Merrick Garland’s decision to release it was a foregone conclusion — and anything short of publicizing the full report would have been worse.....
In practice, though, burying or censoring the report would have been untenable, former Justice Department leaders say.
They described a high-stakes calculus for both Garland and Hur informed by previous politically sensitive investigations: Special counsel reports have always been made public in recent years, and Garland would have been slammed by Republicans and the press if he tried to keep this one under wraps. Hur, meanwhile, clearly understood that political reality, so the harsh language he included was exactly what he expected the public to see.....
While the DOJ regulations used to appoint special counsels call for their final reports to be confidential and Hur labeled his as such, in recent years it has become customary for attorneys general — facing political pressure — to vow to release them publicly to the extent the law allows.
Despite the caterwauling from the White House this week, the conclusion of Hur’s probe was sure to draw a flurry of Freedom of Information Act requests and lawsuits from news organizations and Biden’s political foes. House Republicans could also have subpoenaed the report and related records. The letter Biden’s lawyers sent to Hur indicates transcripts exist of the prosecutor’s interviews with Biden, so the memory lapses Hur cited may have become public whether Hur had colorfully characterized them or not......
And while some Justice Department veterans said the buck stops with Garland, others argued that the attorney general had no choice but to release the report Hur delivered. Hur and his team likely would have understood that their words would become public, even though the report was labeled “confidential.”
“Mr. Hur’s report had to be released unedited lest the attorney general were to be accused of protecting President Biden,” Rossi said.
In practice, though, burying or censoring the report would have been untenable, former Justice Department leaders say.
They described a high-stakes calculus for both Garland and Hur informed by previous politically sensitive investigations: Special counsel reports have always been made public in recent years, and Garland would have been slammed by Republicans and the press if he tried to keep this one under wraps. Hur, meanwhile, clearly understood that political reality, so the harsh language he included was exactly what he expected the public to see.....
While the DOJ regulations used to appoint special counsels call for their final reports to be confidential and Hur labeled his as such, in recent years it has become customary for attorneys general — facing political pressure — to vow to release them publicly to the extent the law allows.
Despite the caterwauling from the White House this week, the conclusion of Hur’s probe was sure to draw a flurry of Freedom of Information Act requests and lawsuits from news organizations and Biden’s political foes. House Republicans could also have subpoenaed the report and related records. The letter Biden’s lawyers sent to Hur indicates transcripts exist of the prosecutor’s interviews with Biden, so the memory lapses Hur cited may have become public whether Hur had colorfully characterized them or not......
And while some Justice Department veterans said the buck stops with Garland, others argued that the attorney general had no choice but to release the report Hur delivered. Hur and his team likely would have understood that their words would become public, even though the report was labeled “confidential.”
“Mr. Hur’s report had to be released unedited lest the attorney general were to be accused of protecting President Biden,” Rossi said.
Even if the full report was not leaked, the report would had eventually come out when Comer or Gym Jordan subpoenaed Garland, Hur and the report itself. Disclosure of the full report would have been a bigger deal than releasing the report in full this far in advance of the general election.
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