Why mention the OLC guidance at all?
That is the question for Bob Mueller, left hanging by the statement his office jointly issued with Justice Department flacks on Wednesday, clarifying (as it were) remarks he had made hours earlier at his parting-shot press conference.
At issue is Mueller’s decision to punt on the question of whether President Trump should be indicted for obstruction of justice. In his startling remarks, Mueller sought to justify himself by citing instruction from the Justice Department’s Office of Legal Counsel. The longstanding OLC opinion, an outgrowth of Nixon- and Clinton-era scandals, holds that a sitting president may not be indicted. The two press offices were struggling to reconcile (a) Mueller’s pointed reliance on this OLC guidance at the presser with (b) his prior disclaimers of such reliance.
According to Attorney General Bill Barr, in a meeting over two weeks before Mueller submitted his final report, the special counsel emphatically denied that his refusal to render a prosecutorial judgment on obstruction hinged on the OLC guidance. Naturally, in their continuing quest to frame Barr as the most diabolical villain since Lex Luthor, the media-Democrat complex insisted that the AG must be lying.
This is what derangement will do to you. I do not think Mueller’s contradictory assertions are that hard to figure out. But if you were inclined to blame sleight of hand, the culprit would be Mueller. You’ll notice that when we finally heard from him on Wednesday, he lauded Barr’s good faith, never claiming that the AG had misrepresented him. Moreover, the conversation between them on the OLC guidance was not a one-on-one affair. There were other people in the room when Mueller denied that the OLC guidance was his rationale for abdicating.
The unimpeached evidence is that Mueller said what Barr says he said.
Reading Between the Lines
Nevertheless, with the media howling that somebody — Barr — had to be fibbing, the press offices got busy. By early evening, DOJ and Mueller’s shuttering shop put out this joint statement:
The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. The Special Counsel’s report and his statement made clear that [his] office concluded it would not reach a determination — one way or the other — about whether the President committed a crime. There is no conflict between these statements.
Well, okay, that’s fine as far as it goes. If you (somewhat selectively) read the carefully crafted lines of Mueller’s report, he said he would not reach a determination on obstruction. And he did not reach one. Therefore, the reasoning goes, it cannot be said that the OLC guidance was determinative: Since Mueller technically did not make a recommendation one way or the other, the OLC guidance was never actually triggered.
But if that’s the case, then the obvious question — to go back to where we started — is: Why mention the OLC guidance at all?
Answer: Because Mueller’s brief speech on Wednesday was not a matter of reading the lines of his report; it was about reading between the lines.
Remember, Mueller’s report is 448 pages long. His press-conference remarks took less than ten minutes, and the substantive discussion of obstruction was but a fraction of that. In those fleeting moments, what were the precious few highlights from the report that Mueller wanted Americans to grasp? They were, first, that the OLC guidance dictated that the president could not be charged; and second, that if Mueller were convinced that the president had not committed a crime, he would have said so . . . but he did not say so — in Mueller’s constitutionally offensive, hyperpolitical articulation, he would not “exonerate” the president.
There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.
And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.
Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)
This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.
Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.
To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.
In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.
Once you understand that, it is easy to see what happened here.
Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).
The attorney general believes that (a) obstruction charges may not be based on exercises of a president’s constitutional prerogatives — only on obviously corrupt acts (e.g., evidence destruction, bribing witnesses); (b) all executive power under the Constitution is reposed in the president; and thus, (c) when the chief executive takes actions the Constitution empowers him to take (e.g., firing or threatening to fire subordinates), it is not the place of an inferior executive officer, such as a federal prosecutor, to second-guess them as “corruptly motivated.” Recognizing how traumatic accusing a president of a crime is for the country, moreover, Barr thinks an obstruction offense would have to be crystal-clear and serious — you don’t tear the nation apart over something about which reasonable minds could differ.
By contrast, Mueller’s staff believes that (a) the executive bureaucracy is semi-autonomous in its areas of expertise, and thus Justice Department prosecutors are supreme, even over the president, in matters of law enforcement; (b) Congress had the constitutional power to, in effect, transfer executive authority from the president to prosecutors by enacting obstruction laws that may be enforced against the president; and therefore, (c) even if a presidential action is lawful in itself, a prosecutor may allege obstruction if the prosecutor believes the president’s motive was corrupt. Furthermore, little or no consideration should be given to whether a president’s allegedly obstructive act is especially clear or serious because the president (at least if the president is a Republican) must be treated like anyone else — otherwise, the president is placed above the law. (Democratic presidents, to the contrary, are the law — see, e.g., DACA, Obamacare decrees, IRS harassment of conservative groups, Fast and Furious stonewalling of Congress . . .)
Playing Out the Alternative Scenarios
This drastic divergence on what can constitute an obstruction offense had practical consequences here.
For most of his investigation, Mueller was “supervised” by acting AG Rod Rosenstein, who did not comply with special-counsel regulations in appointing him, and who promised Democrats that he would be effectively independent. As long as the studiously passive Rosenstein was at the helm, the staff-driven Mueller was free to investigate under his loose, envelope-pushing obstruction theory. Once Barr became AG, however, it was clear that Mueller’s theory was not going to fly.
So, let’s play out the alternative scenario.
Let’s say that, having convinced himself he had a strong obstruction case, Mueller decided to recommend that the president be charged. That would have forced a confrontation over the issue that has been sidestepped: What are the correct standards for evaluating an obstruction allegation against a president? There would have been a brawl at Main Justice. The report would have been held up while the matter was debated.
More to the point, Mueller and such top staffers as Andrew Weissmann and Michael Dreeben, who have operated at the top echelon of the Justice Department, would have known that the attorney general would win such a battle ten times out of ten. That goes double for an AG such as Barr, a highly regarded legal thinker who, besides now being AG twice, ran the OLC in the Bush 41 administration. He was not going to be intimidated or bulldozed by Mueller’s staff.
Remember: Mueller’s staff is looking at this as if they were congressional impeachment counsel. Their objective is to get their evidence to Congress bearing something close to the stamp of an indictable felonies.
Consequently, direct confrontation with the AG was the last thing they wanted. It would have guaranteed failure. The Mueller report’s discussion of obstruction standards would not have gotten out the Main Justice door as an authoritative statement of the law. There would have been a revised articulation of obstruction law as it applies to the president. There would have been vigorous debate over the eleven instances of obstruction Mueller wanted to allege. The report would have been scrutinized carefully by Justice Department lawyers, especially where it plays fast and loose with the facts (see, e.g., my Papadopouolos column). It might never have been released. If it had been released, it would have been discredited or dramatically revised.
That would not have helped the impeachment cause.
So . . . Plan B: What if we decline to make any recommendation on obstruction?
Mueller’s staff calculated: If we don’t press the point of indicting the president, the AG and the Justice Department have no reason to dispute our findings, or even take on our analysis of obstruction law. They’ll be so relieved to avoid a fight over obstruction charges, they’ll be willing to let all that slide. And with Congress demanding the report, and the AG having promised maximum transparency in his confirmation hearings, we will achieve our objective: Congress will get our obstruction evidence, with an accompanying legal analysis that tends strongly in favor of finding felony obstruction. That will be the basis for any impeachment proceedings.
This, then, became the plan: Mueller would decide not to decide.
There was just one problem: Mueller would need a reason for not deciding. Barr was sure to ask. Mueller could not truthfully respond, “Well, we see ourselves as congressional impeachment counsel.” Barr has been quite clear (and quite right) that federal prosecutors exist to enforce the law, not to do Congress’s work — Congress has its own bloated staff for that.
Mueller’s staff would need to come up with something that would pass the laugh test. After all, there was no collusion case, so rendering a prosecutorial judgment on the obstruction question was the only thing for which a special counsel had arguably been needed. Now, Mueller was about to tell the AG he would be abdicating on that. He’d be asked to explain himself, and if he didn’t have a compelling answer, he’d need to stall.
It happened on March 5, during Barr’s first meeting with Mueller after being confirmed. Taken aback by Mueller’s announcement that he would not be deciding the obstruction question, Barr pressed him repeatedly: “Is it because of the OLC guidance?” Mueller insisted that it was not. When asked what, then, was the reason, Mueller meandered about how they were still formulating their rationale.
Get it? Result-oriented: Decision first, then we’ll cobble together the reasoning.
Why would Mueller do this? Again, play out the alternative scenario.
If the special counsel had told Barr that the OLC guidance was his rationale for not deciding, Barr would likely have told him, “Don’t worry about the OLC guidance, that’s not your job. The OLC guidance only says we can’t return an indictment now. We still need to know whether there is a prosecutable case. Just make a recommendation on that, one way or the other.”
If that had happened, Mueller would have been cornered. If he recommended in favor of indictment, he would have ended up in the confrontation with Barr over obstruction law that he was trying to avoid. If he recommended against an indictment, he would have undermined the impeachment effort.
So he punted. And it worked.
Mueller told Barr he was still formulating his rationale for not deciding the issue. Maybe the staff really was still trying to come up with a coherent explanation; or maybe in the back (or front) of their minds, they figured “we’re still formulating” was vague enough that they could ultimately rely on the OLC guidance, even if Mueller had said it was not his rationale.
Whatever the calculation was, two and a half weeks later, when Mueller delivered his final report to Barr on March 22, Mueller and his staff expressly invoked the OLC guidance.
Does that mean Mueller was being dishonest on March 5? Does it mean his thinking truly was still evolving?
What difference does it make?
What matters is that Mueller’s shrewd staffers accomplished exactly what they hoped to accomplish: Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.
And now, for good measure, Mueller took pains on Wednesday to stress that, in our system, it is Congress’s duty to address presidential misconduct.
For partisan lawyers who saw their special-counsel gig as an opportunity to play congressional impeachment counsel, it is Mission Accomplished.
Something to Consider
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