What a waste.
The most telling revelation in Attorney General William Barr’s letter about Special Counsel Robert Mueller’s much-anticipated final report is that Mueller has punted on the main question he pursued for nearly two years of investigation: Did President Trump commit an obstruction offense?
The Barr letter gingerly states that, after making a “thorough factual investigation” into alleged instances of obstruction, Mueller “ultimately determined not to make a traditional prosecutorial judgment.” Since making a prosecutorial judgment was Mueller’s job, that means he defaulted. What did we need him for?
Not only that, but Mueller determined that it would be better for the attorney general to make the prosecutorial judgment. So, for the millionth time, what the hell did we need a special counsel for? If the Justice Department, in Mueller’s judgment, was perfectly well-suited to make the call, how could there possibly have been a conflict so profound that it was necessary to bring in a special counsel in the first place? A special counsel, mind you, who recruited his staff from the Justice Department, transferred the cases he brought to Justice Department components, and, now, has ultimately delegated his decision-making responsibility to the Justice Department.
The lack of a so-called collusion case is no surprise, as I contended in my weekend column. As far as President Trump and his campaign were concerned, there never was a case of the only kind of actionable collusion that would have been of interest to a federal prosecutor: knowing complicity in Russia’s cyber-espionage operation to influence the 2016 campaign.
The refusal to draw a conclusion on obstruction is notable in contrast. At bottom, this is a retreat on the push by at least some members of Mueller’s staff for a novel theory of obstruction, which held that the president could be charged based on exercises of his constitutional powers (e.g., firing the FBI director) if a prosecutor decided his motivation was improper. Regarding this retreat, it is worth exploring the effect of the Barr memo — the June 2018 memorandum that Barr, when he was a former attorney general rather than the incumbent one, submitted to Rod Rosenstein, the deputy AG who was the acting AG supervising Mueller’s Trump-Russia investigation.
In the memo, Barr argued that the obstruction theory Mueller’s staff appeared to be pursuing was constitutionally infirm and practically unworkable. Based on statutory law, the Constitution, court precedent, and longstanding Justice Department guidelines, Barr posited that an indictment of a president for obstruction could properly be based only on plainly corrupt acts — not constitutionally ordained exercises of presidential prerogative — that involve tampering with evidence and witnesses.
In the end, then, Mueller had a choice to make: Either (a) accept that Barr’s interpretation of obstruction law was correct, or (b) recommend an indictment based on the more expansive interpretation of obstruction that his staff seems to have been pursuing and dare Barr to reverse him. The special counsel couldn’t bring himself to decide. In effect, he accepted Barr’s construction of the law, but he declined to admit that he was doing so. After all, if Barr was right all along, what were the last 22 months about?
To be sure, Barr gave Mueller a face-saving way out. The Barr memo catalogues several ways in which Mueller’s obstruction theory would unconstitutionally strip the president’s Article II powers and flout well-settled Justice Department rules of statutory construction. Yet, in announcing the decision to decline prosecution, Barr’s letter refrains from rehearsing these flaws. Instead, without mentioning his memo, the attorney general emphasizes its position that, even on the Mueller theory’s own terms, obstruction could not be proved.
In his memo, Barr observed:
Even if one were to indulge Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing [FBI director James] Comey and commenting on [the investigation of fired national-security adviser Michael] Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion.
This is obviously true. That is, even assuming for argument’s sake that a president could be prosecuted for otherwise lawful executive acts that a prosecutor claimed had been corruptly motivated, it would still be incumbent on the prosecutor to prove corrupt motivation beyond a reasonable doubt. If Trump is not guilty of the underlying collusion offense, then any actions he took that arguably had a negative impact on the investigation — even if we found such acts foolish or unseemly — could be explained by his frustration over the baselessness of the investigation and its debilitating effect on his capacity to govern. If the president has not colluded, a prosecutor could not establish a corrupt intent to conceal guilt.
This reasoning is echoed in Barr’s letter on Mueller’s report:
The Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction. Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.
At the end of the same paragraph, the attorney general again stresses that corrupt intent “would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense,” under the Justice Department’s guidance for prosecutorial charging decisions. The letter adds that the president’s contested actions “took place in public view,” which also cuts against the suggestion of corrupt intent. Classic obstructive acts of mutilating evidence and bribing or intimidating witnesses are done in the shadows.
Barr’s letter also points out that each of the president’s contested acts was within his Article II authority and that none of them “had a nexus to a pending or contemplated proceeding” that is cognizable under the obstruction laws. These are also themes of Barr’s memo.
That is to say, Mueller had to know that, if he left the ultimate charging decision to Barr, the outcome would not be in doubt — not because Barr was appointed by Trump, but because Barr had already laid out, in scholarly detail, the legal and evidence-based rationale for rejecting obstruction charges.
In the greater scheme of things, the special counsel’s dereliction would be of little moment were it not for his gratuitous pronouncement about what it all means. To divert attention from his failure to render a prosecutorial judgment, Mueller stated (Barr’s letter quotes him):
“While this report does not conclude that the President committed a crime, it also does not exonerate him.” That’s a political statement, not a prosecutorial statement.
Prosecutors never “exonerate” people. It is for others to say whether a person has been exonerated. All prosecutors can say is whether there is enough evidence to charge or there is not. If there is not, then you don’t file charges, period. To cite the obvious example, you didn’t hear Mueller say, “I am exonerating President Trump on the collusion claims.” He simply found insufficient evidence to establish a crime under the governing legal standards, so he declined to file charges and left it to the commentariat to sort out what it all means.
On obstruction, however, Mueller declined to apply the law to the facts. That was the only job he was hired to do. Whether he thinks the Justice Department’s decision not to charge the president is an exoneration or something less is no more relevant than what you or I think about it.
What a waste.