Attorney General William Barr’s testimony before Congress on Wednesday highlighted the inherent contradiction in his letter about Robert Mueller’s investigation. The problem is not that Mueller did not make a charging decision about obstruction. The real problem is that Mueller did make a charging decision about conspiracy.
Barr was asked questions about Mueller’s investigation into links between the Trump campaign and Russia relating to interference with the 2016 election. Barr seemed to move interchangeably between the view that, on the one hand, a president cannot be indicted while in office, and, on the other hand, that the Russia investigation should be analyzed like any other criminal case. But these are two different things. You can’t have it both ways. If a sitting president cannot be indicted, then Congress gets to decide whether to charge a crime through impeachment, not a prosecutor through the normal analysis of criminal statutes.
Barr’s March 25 letter to Congress stated that Mueller concluded that his investigation did not establish conspiracy between the Trump campaign and the Russian government to influence the election, but that Mueller refrained from making a “traditional prosecutorial judgment” when it came to obstruction. (Again, a president can’t be indicted.) Barr wrote Mueller’s decision “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” Congress and the public still do not have access to Mueller’s report, and it has been unclear why Mueller’s declination to make a decision meant that the decision was to be made by Barr.
On Wednesday, Sen. Patrick Leahy pressed Barr to explain why Mueller’s decision meant that the attorney general must decide the question. After all, since the Department of Justice taken the position that a sitting president cannot be indicted, isn’t the only recourse for a president’s misconduct for Congress to decide whether it amounts to a high crime or misdemeanor for which impeachment is appropriate? And wasn’t the whole point of appointing a special counsel to insulate the decision-maker from the executive branch chain of command to avoid a conflict of interest?
During the hearing, Barr conceded that when Mueller submitted his report, Mueller did not say that he intended to leave the obstruction decision to Barr. But Barr would not concede that Mueller intended to leave the obstruction decision to Congress. Instead, Barr said that he made the decision himself because “that’s generally how the Department of Justice works. Generally, grand juries are to investigate crimes and a prosecutor’s role at the end is binary. There are charges or no charges, or is this a crime or not a crime?” And for good measure, he added, “I’ve had some experience in that field.”
But a special counsel’s investigation of a president is anything but the general practice of the Department of Justice. A special counsel’s role is not binary. In fact, one could argue that a special counsel should make no charging decision at all, instead, collecting the evidence and then turning it over to Congress to decide whether the facts amount to a high crime or misdemeanor for which impeachment is appropriate.
Barr’s letter dissects the elements of the criminal statute for obstruction, applies the Justice Department’s Principles of Federal Prosecution that are used in normal criminal cases, and uses the standard of proof as guilt beyond a reasonable doubt. But these are the standards that apply in a normal criminal case, not in an impeachment proceeding. It seems that by taking the position that a sitting president cannot be indicted, it follows that the standard for analyzing alleged misconduct of the president should not be the standard that is used to obtain indictments. Instead, Congress should be permitted to analyze the conduct under its own standards.
Barr’s decision should also be viewed with some skepticism because of the unsolicited 19-page memo he sent to DOJ leadership last summer in which he expressed the somewhat unique view that a president cannot obstruct justice as a matter of law if he is exercising executive power, such as by asking the FBI director to stop investigating a matter or firing him. Barr’s March 25 letter stated that he reached his decision “without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president,” citing the 2000 Office of Legal Counsel memo regarding prosecution of a sitting president. His letter did not say, however, that he reached his conclusion without regard to the position taken in his 19-page memo.
Barr raised further concerns about his objectivity when he referred to the FBI investigation into Trump’s campaign as “spying.”
He stated that he would be “reviewing both the genesis and the conduct of intelligence activities directed at the Trump campaign during 2016,” even though a “substantial portion” of these matters are already being investigated by DOJ’s inspector general. Although the FBI’s conduct should not be immune from scrutiny, government officials typically refer to intelligence activities as “surveillance” or “collection.” The use of the loaded term “spying” raises skepticism of his impartiality.
In addition, Barr stated, “I think there was probably failure among a group of leaders there at the upper echelon.” He has reached this conclusion even though he hasn’t “set up a team yet” to investigate. Barr’s testimony revealed a mindset that is consistent with the Trump narrative of an FBI that is out to get him. This is the attorney general appointed by Trump after Trump criticized Barr’s fired predecessor, Jeff Sessions, for failing to protect him. Does Trump finally have his Roy Cohn?
But all of this talk about obstruction masks the real point, which is that if Mueller had no business deciding the obstruction question, then why did he decide the conspiracy question? Unless Barr provides members of Congress with Mueller’s full report, they are unable to fulfill their duty to serve as a check on the president and will have no choice but to conduct their own investigation into both questions.