NRPLUS MEMBER ARTICLE T his is Part Two of a two-part series. In Part One, we took a look at the OLC guidance that bars the indictment of a sitting president. (The OLC is the Justice Department’s Office of Legal Counsel.) In particular, we looked at (a) how, in investigating President Trump for purported obstruction, special counsel Robert Mueller’s staff distorted the guidance into a prohibition against even considering whether an offense occurred; and (b) the futile hope of congressional Democrats, during Wednesday’s hearings, that Mueller would contradict his final report on this point.
In Part Two, we explore why Mueller’s staff of very able lawyers, many of them activist Democrats, twisted the OLC guidance. (Spoiler: Their priority was to get their evidence to Congress, intact and as quickly as possible, in hopes of fueling an impeachment drive, or at least damaging Trump politically.) We also analyze how attorney general Bill Barr deftly dealt with the Mueller staff’s gamesmanship.
As we observed at the end of Part One, Mueller’s report makes the whopper of the claim that prosecutors construed to OLC guidance to forbid them to make a charging decision on obstruction because they were trying to protect President Trump.
Well, Justice Department protocols prohibit prosecutors from prejudicing suspects by publicizing the evidence against them unless and until they are formally charged. The idea is that the government must refrain from speaking until it files an indictment. For at that point, the person becomes an “accused” under the Constitution, vested with all the due process guarantees our law provides: assistance of counsel, confrontation of witnesses, subpoena power — the full array of rights to challenge the government’s indictment.
From this commonsense proposition, Mueller’s staff leapt to an untenable conclusion: Because the OLC guidance prevents the Justice Department from formally charging a sitting president, poor President Trump would have been denied his due process protections if Mueller had recommended an indictment: It would be as if the government slimed him by publicizing the evidence but denied him his day in court to clear his name.
If this doesn’t insult the intelligence, nothing will. Sliming the uncharged president by publicizing the evidence is exactly what Mueller’s team did.
The special counsel’s staff wrote a 448-page tome, overflowing with details about a traitorous collusion plot that never happened and the obstruction of an investigation that was never actually impeded in the slightest. Even though the regulations call for a confidential report from the special counsel to the attorney general, the Mueller report was patently written with the intention that it would be transmitted to Congress and the public. (Indeed, even before the report was submitted to the Justice Department, various industrious publishers planned to make it available for sale.) Moreover, when AG Barr undertook to announce only the special counsel’s bottom-line conclusions, Mueller’s staff threw a fit, grousing to the media that Barr was wrongly withholding the report and denying the public the condemnatory narrative in which they had couched these benign conclusions.
Another of many reasons the Mueller staff’s claim to be protecting Trump is laughable: If Mueller and his staff were actually playing by the rules, they would have demanded that their report to Barr be kept confidential — like a normal consultation between a prosecutor and a supervisor about whether an indictment should be sought. If they had done that, there would have been no need for their touching expression of concern about the president’s rights. Any recommendation to indict or other prosecutorial deliberations would have remained non-public; only the indictment, if one were ever filed, would become public. But Mueller’s staff wrote a report that was patently intended to be the antithesis of confidential. Due process is protected when the regulations are followed, not when they are flouted.
Finally, there are three other manifest problems with Mueller’s construction of the OLC guidance. First, if Mueller really believed the OLC guidance prevented him from even considering whether President Trump could be charged, why did he render a decision on the collusion aspect of the probe? He can’t have it both ways. Second, if Mueller really believed the OLC guidance prevented him from performing the prosecutor’s task, why on earth did he accept the appointment to act as a prosecutor? Third, if Mueller really believed the OLC guidance prevented him from considering whether to indict, why did he tell AG Barr, two weeks before filing his report, that the OLC guidance was not the reason he would refrain from recommending obstruction charges?
The Obstruction Dispute
Now, let’s bear in mind: Mueller’s staffers are very good lawyers. And many of them, including such laboring oars as Andrew Weissmann and Michael Dreeben, undoubtedly would like to see Trump driven from office — whether by prosecutors, lawmakers, or voters. So why would exceptional, aggressive prosecutors adopt a risible interpretation of the OLC guidance that tied their own hands, preventing them from finding an obstruction offense against the president when they had clearly tried very hard to make the case?
Because they were smart enough to know they couldn’t make the criminal case in court, and that the best way to hurt Trump was to get their work to Congress, where it might fuel an impeachment push and would surely damage the president politically.
Why couldn’t they make the criminal case? That brings us to an issue more central than the OLC guidance: the law of obstruction.
Mueller’s staff and the Justice Department, particularly under Barr, disagree fundamentally about what conduct may constitute an obstruction offense against a president. And there is a corollary: When there is a difference of opinion at the Justice Department, someone gets to decide. In this instance, that someone was Barr, not Mueller. That is, the special counsel could recommend an obstruction indictment, but it would be up to the attorney general to determine whether to follow the recommendation.
To summarize, Mueller’s staff operated under an expansive construction of obstruction, claiming that any presidential act — including legitimate exercises of a president’s constitutional prerogatives, such as firing or considering firing such subordinates as the FBI director and the special counsel himself — could be grounds for an obstruction charge if a prosecutor (i.e., an inferior executive official) decided the chief executive’s motive was corrupt.
Barr, by contrast, hews to the traditional understanding that a president is only liable for a criminal obstruction charge if he engages in blatantly corrupt conduct that is not within his constitutional prerogatives — e.g., bribing witnesses or destroying evidence. Importantly, that does not mean a president is immune from accountability for abusing executive powers; rather, in our system, it is for Congress, not an inferior executive official, to second-guess the legitimacy of the chief executive’s acts — i.e., Congress can impeach the president.
How did these divergent views of obstruction law play out in the Mueller investigation?
For most of the probe, because of AG Jeff Sessions’s recusal, Mueller’s staff was “supervised” by deputy AG Rod Rosenstein (the same guy who considered invoking the 25th Amendment against Trump, and who decided that the faded Mueller we watched testify this week would be a perfect fit to run the Russia investigation). Rosenstein’s passivity gave Mueller’s staff carte blanche to investigate obstruction under their ever-elastic theory. They intimidated administration officials, who feared that any objection to the legitimacy and tactics of Mueller’s probe would result in more allegations of corruption and obstruction.
Then in mid-February 2019, after Mueller’s staff had been going merrily along this way for 21 months, Barr became attorney general. At that point, Mueller’s staffers knew they were now dealing with a strong AG who had a scholarly understanding of obstruction law and would not be cowed by their skill and aggression.
Barr was not going to buy the Mueller staff’s theory of obstruction. Consequently, if Mueller had recommended obstruction charges against Trump based on the legal analysis explicated in Volume II of the report, then the Justice Department would have rejected the recommendation and the legal analysis. There would have been an intense debate within the Justice Department involving the special counsel’s staff, OLC, and the AG — a debate Mueller’s staffers had to know they would lose if they were foolish enough to force it. Volume II would have gotten much more Justice Department scrutiny. Mueller’s staff would not only have been thwarted in their quest to indict Trump; their report might have been tied up at DOJ for months — and perhaps never be released in its current form.
The Mueller Staff’s Strategic Retreat
Mueller’s anti-Trump staffers knew they were never going to be able to drive Trump from office by indicting him. The only plausible way to drive him from office was to prioritize, over all else, making the report public. Then, perhaps Congress would use it to impeach. At the very least, the 448 pages of uncharged conduct would wound Trump politically, helping lead to his defeat in 2020 — an enticing thought for someone who had, say, attended the Hillary Clinton “victory” party and expressed adulatory “awe” for acting AG (and fellow Obama holdover) Sally Yates when she insubordinately refused to enforce Trump’s border security order.
Of course, it wouldn’t be enough to get the report to Congress. The challenge was to get it there with the obstruction case still viable even though prosecutors knew they couldn’t get away with recommending an obstruction indictment. How to accomplish this? By pretending that the OLC guidance prevented prosecutors from even making a charging decision.
First, Barr would need to be informed that Mueller would not be rendering a decision on whether Trump should be charged with obstruction. Barr would no doubt be surprised and irked by this. Yet, the staff surmised that he would grudgingly accept it. For Barr, Mueller’s non-decision would not be nearly as hot a potato as a recommendation to indict Trump would be — he’d take the former to avoid the latter. They figured: What the administration most desired was to be able to say that Mueller had not found any obstruction (or collusion) offenses. Accepting Mueller’s abdication would allow for that. Plus, Barr would realize that if he ordered Mueller to make a decision, Mueller’s staff would probably recommend an indictment — the anti-Trump staff would never concede that Trump had not committed obstruction and, as Wednesday’s testimony made clear, Mueller was not up to a confrontation with his staff over the esoterica of obstruction law. If Mueller recommended an indictment of Trump, Barr would be unrelentingly vilified if he disagreed with Mueller’s obstruction analysis and overruled the recommendation.
Mueller’s staff also knew there would be great congressional and public demand to read their report, and that Barr had committed in his confirmation hearings to be as transparent as law and Justice Department policy allowed. If they conceded that they could not recommend obstruction charges, Mueller’s staff figured the report would be published rapidly, despite any disagreements Barr might have with its substance, including their expansive interpretation of obstruction law.
It was a very clever plan. There was just one potential hitch: the OLC guidance.
Mueller’s staff realized that Barr would want Mueller to explain his reasoning for not making a charging decision on obstruction. The staff would not want to say that the evidence of obstruction was not strong enough — that would hurt the position of congressional Democrats who want to impeach Trump. But neither would they be permitted to claim that the OLC guidance forbidding indictment of a sitting president prevented them from recommending obstruction charges. Barr would know that such a claim would be the functional equivalent of saying Trump should be charged. He would not countenance that; he would instruct Mueller to make a recommendation, one way or the other, about whether Trump should be indicted, and leave it to Barr to worry about the OLC guidance.
That is, Mueller’s staff knew that if they claimed the OLC guidance was the sole reason they could not recommend an indictment, they’d be right back to square one: confronting all the downsides of making a recommendation to indict that would be rejected by Barr, that would provoke major Justice Department evaluation of their report, and that would likely keep the report under wraps interminably.
So, they would have to finesse the OLC guidance. (That’s a polite way to put it, right?)
Consequently, in their first meeting about the investigation, Mueller assured Barr that the OLC guidance was not his basis for refusing to decide the obstruction issue. When Barr inevitably pressed him on what, then, was his rationale, Mueller said his team was still formulating its reasoning. . . even though the decision not to decide had already been made.
They were buying time.
Then, two weeks later, they filed the report. It was a masterful exercise in doublespeak. Mueller’s staff relied on the OLC guidance, but not for the purpose of refusing to make a recommendation (which, again, would have been unacceptable to Barr). Instead, they claimed to interpret the guidance to prohibit them from even considering whether Trump should be charged. It is a head spinner: Mueller’s prosecutors acknowledged that they were not finding Trump had committed an obstruction crime; but they carefully qualified that neither were they saying he had not committed obstruction — in their constitutionally offensive parlance, they were not “exonerating” the president. With a wink to congressional Democrats, Mueller’s activist Democratic staff essentially said: We’re not charging him, but that doesn’t mean there is insufficient evidence to charge. . . which means there might very well be impeachable offenses.
Barr, of course, is no slouch at the chess game. What would his responsive move be?
He could have decided that Mueller’s position on the OLC guidance was untenable and that the special counsel must make a recommendation, yes or no, on obstruction. But Barr realized that if he cornered Mueller’s staffers this way, they would probably recommend an indictment. Again, that would draw Barr into a major controversy over whether to overrule Mueller, which the AG surely wanted to avoid. Barr thus opted to make a different move: He would accept Mueller’s report and exploit its weakness, namely, the special counsel’s failure to decide the central question of whether there was sufficient evidence to indict. With Mueller having abdicated, Barr would fill the void by making the decision — and he would do it in conjunction with Rosenstein, which would mean the official who supervised Mueller’s investigation for almost all of its duration was in agreement with the Barr’s determination.
Nor was that all. Even though he disagreed with Mueller’s interpretation of obstruction law, Barr adopted it for argument’s sake; and similarly, he assumed the accuracy of Mueller’s investigation and undertook to decide the obstruction question solely on the facts as Mueller found them.
This was adroit. No matter what legal standard is employed, a prosecutor cannot prove obstruction without establishing, beyond a reasonable doubt, that the defendant had corrupt intent. To say there is insufficient evidence of corrupt intent does not mean there is no evidence. At Wednesday’s hearing, Democrats seemed to believe that if there is evidence of corrupt intent (or any other element of a criminal offense) then that element is deemed to be satisfied. That, however, is not how it works. With an essential element of a criminal offense, there is almost always evidence on both sides. That evidence must be weighed, and the element is only deemed satisfied if it is proved beyond a reasonable doubt.
That is, Barr could accept all of the unsavory conduct Mueller uncovered, he could freely concede that some of this evidence implied an improper purpose, and yet he could still credibly find that intent could not be proved beyond a reasonable doubt. Why? Because (a) Trump provided extraordinary cooperation to Mueller (even making his White House counsel extensively available, which he did not have to do); (b) Trump never shut down the investigation or fired Mueller, though he had the power to do so; (c) the investigation was not actually impeded in any way; (d) there was no underlying collusion crime so Trump could not have been trying to cover up a conspiracy with Russia; and (e) Trump was lashing out due to frustration, not corruption, because he knew he was not a Russian agent but had to endure slanders that he was by investigators and political opponents.
In the end, then, Barr accepted Team Mueller’s gamesmanship on the OLC guidance, accepted their obstruction analysis, and accepted their conclusions of fact. By doing so, he left them no credible grounds to object, while he was nevertheless finding that Trump had not committed obstruction. He made the prosecutors’ conclusions publicly available quickly — and they looked derelict because, in deciding to try to do Congress’s job, they had failed to do their own. All they could complain about was that the public did not get access to the anti-Trump flavor of their narrative quickly enough to suit them.
Mueller’s team was sharp. They creatively used the OLC guidance to try to signal an obstruction crime without quite accusing Trump of obstruction — banking on congressional Democrats to finish the job. In Barr, they just happened to run into a guy who figured out what they were doing, and who had the brains and the power to stay a step ahead.
Editor’s Note: This article has been emended since its initial publication.
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