There is no question that for Democratic partisans—as well as the few remaining “never Trumpers”—the summary of Special Counsel Robert Mueller’s report was a disappointment. It appears that Mueller will not deliver a mortal blow to the Trump presidency. Trump's fate will, instead, be determined by the voters in 2020, not by a grand jury and most likely not by impeachment, either.
But, at the same time, the president’s claim of “total and complete exoneration” is complete nonsense. Attorney General William Barr’s letter summarizing Mueller’s findings itself directly refutes this; indeed, it quotes Mueller’s report as saying just the opposite of what the president, and his press secretary, have claimed. And Barr’s determination that the president did not obstruct justice does not inspire confidence, especially because it’s not his call to make.
First, Barr references facts that Mueller considered, and notes that not all of these facts are known to the public. Obviously, without knowing what these other, non-public facts are, it is impossible to judge the reasonableness of Barr’s determination.
Second, it is almost impossible to view Barr as an impartial arbiter. After all, before becoming attorney general, he drafted a 19-page memo that laid out his conclusion that the president cannot obstruct justice by firing executive branch subordinates, such as the FBI director. Given that these were and presumably still are Barr’s views, it can hardly be surprising that Barr has concluded that the evidence that Mueller has gathered does not satisfy Barr’s rather peculiar standards for obstructive conduct. That Barr has interceded with his own judgment of culpability directly contradicts the very purpose for appointing an independent special counsel to conduct this investigation.
Third, that Barr’s conclusion was based, at least in part, on the absence of a provable case of collusion with Russia is puzzling. It is not at all uncommon for defendants to be charged with obstruction of justice even where the crime at issue is not, ultimately, provable. Targets of criminal investigations frequently take actions to obstruct the government’s investigation even when doing so is unwise and later proves to be disastrous—just ask Scooter Libby or Martha Stewart.
Finally, a close reading of the portion of the Barr letter regarding the obstruction of justice count suggests that the reason Mueller did not opine on the president’s culpability was not because the evidence was in equipoise and Mueller could not make up his mind. Rather, it appears that Mueller determined that the president’s culpability was ultimately a political judgment for Congress to make, rather than a legal determination for the special counsel to decide.
According to Barr’s letter, Mueller laid out in detail the facts supporting and contradicting a possible obstruction charge. There is nothing from this description to assume the evidence was not heavily weighted in favor of obstruction. But Mueller did not opine on culpability because—most likely—the indictment of a sitting president is prohibited by DOJ policy. This fact would explain why Mueller “ultimately determined not to make a traditional prosecutorial judgment”— albeit specifically noting that this was not an exoneration.
It was into this void that Barr jumped. Barr never explains why it was his role to make this determination. Instead, Barr states that because Mueller decided not to opine, it therefore was left to him—the same person who previously stated the president cannot obstruct justice—to determine “whether the conduct described in the report constitutes a crime.” Not surprisingly, he concluded it did not.
The Department of Justice has determined that a sitting president cannot be indicted. Mueller was bound by this determination. The corollary to this must be that a president’s misconduct must be judged by Congress, which must determine whether this conduct constituted a “high crime or misdemeanor.” Barr’s own conclusion deserves little weight on this score.
All of the facts Barr relied upon to make this decision are in the report. These must be made public so that we can all make our own judgments.