‘Confidential’ in name only: Merrick Garland’s delicate decision to release the Hur report
... 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 (Gene, a former federal prosecutor) said.
Gorelick (Jamie, a deputy attorney general under President Bill Clinton) said that under the circumstances it would have been “very hard not to” release Hur’s report, but that the better policy is for such reports to remain secret.
“I would say any report should be confidential,” she said. “You make a charging decision or not and that should be the end of it.”
The debate over publishing the reports by independent prosecutors dates back to the 1980s, when critics of the independent counsel law then in effect complained that those prosecutors’ reports could amount to character assassination.
“There’s just a history of mischief,” Gorelick said. “There’s just too many ways in which what happened yesterday can happen.”
By the 1990s, many liberals joined in the chorus of criticism of the law as Clinton’s administration faced seven such investigations, including the Whitewater probe. Congress let the law expire in 1999, prompting the Justice Department to issue the regulations for special counsels that remain in effect today.
Among those who raised concerns about such reports was Brett Kavanaugh, who served as a prosecutor on Independent Counsel Kenneth Starr’s staff and now sits on the Supreme Court. (Kavanaugh left open the idea, though, of a report to Congress about possible impeachable offenses.)
“As a general proposition, a public report is a mistake,” Kavanaugh wrote in a 1998 law review article. “It violates the basic norm of secrecy in criminal investigations, it adds time and expense to the investigation, and it often is perceived as a political act. It also misconceives the goals of the criminal process.”
Leaving aside whether those lapses should have been included in the report, they are pretty big lapses 
