American Presidency: The Mueller Report and the Barr report

Michael Goldhaber, IBA US Correspondent

This was the part of the report where Barr was most straightforward. In general, the AG claimed that the ‘White House fully cooperated with the Special Counsel’s investigation,’ even as the President refused to be interviewed and claimed to forget the answer to over 30 written questions. On the second main issue – obstruction of justice – the AG accurately stated that Mueller reached no decision. But Barr suggests that the policy against indicting a President was not crucial to Mueller’s indecision on obstruction; that Mueller didn’t indicate he was leaving the decision to Congress; and that Mueller’s indecision ‘leaves it to the Attorney General to determine.’ All these points are highly questionable. Then the AG went ahead and found ‘no obstruction,’ with virtually no reasoning.

Various legal observers have a different take. Former federal prosecutor Renato Mariotti says the Mueller Report scans like an obstruction indictment that pulls up short of the conclusion. Mueller’s stated reason for pulling up short is that the Justice Department policy against indicting the President would deny Trump a chance to clear his name. When the ten episodes of obstruction reviewed by Mueller are considered together, the case for obstruction seems strong. The report suggests that the legal standards for obstruction may even have been met in some individual instances – as when the President ordered his White House Counsel to terminate Mueller and then deny the incident, or when the President sent then-AG Jeff Sessions a message to un-recuse himself and limit Mueller to future election meddling. In an underwhelming vote of confidence, Mueller is ‘unable to reach th[e] judgment’ that ‘the president clearly did not commit obstruction of justice.’

Attorney General Barr reached out to make the judgment that Mueller would not make, after publicly embracing two theories that Mueller expressly refutes. Barr wrote a memo last year opining that the President can’t commit obstruction through an act that falls within his power, like firing a subordinate. Yet ‘the Constitution does not categorically and permanently immunize a President for obstructing justice through the use of his Article II powers,’ Mueller retorts. ‘For example, the proper supervision of criminal law does not demand freedom for the President to act with a corrupt intention of shielding himself from criminal punishment, avoiding financial liability, or preventing personal embarrassment.’

Barr argues in his summary that a prosecutor’s inability to prove an underlying crime cuts against a finding of intent to obstruct. In Barr’s reading of the report, the President’s intent was pure because he was merely ‘frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.’ What the report actually says is radically different. Mueller reasons that Trump’s motive to cover up his Russia links could have been corrupt, even if prosecutors couldn’t show that those links rose to the level of a conspiracy, either because the President was obsessed with the perceived legitimacy of his election triumph, or because the President worried about the genuine potential for criminal prosecution.

As for who should decide on obstruction, there is nothing to suggest that Mueller left the decision for Barr. In Mueller’s words, ‘The conclusion that Congress may apply the obstruction laws to the president’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.’

Carol Elder Bruce served as an independent counsel before Congress let the independent counsel law lapse in favour of a special counsel governed by Justice Department regulations. She says the intrusive role played by Barr in the release of the Mueller report reveals a flaw in design of the special counsel. Under the current system, ‘the investigation starts and ends with the Attorney General,’ says Bruce. ‘The whole purpose of having a special counsel is to avoid influence by political figures in the administration,’ she says. ‘The special counsel should make the final decision on what is charged or not. The regulations should require it.’

Professor Susan Bloch of Georgetown University Law Center makes a similar point. ‘Mueller couldn’t have expected or wanted Barr to decide whether the President committed obstruction, because the point of the special counsel is to take that decision out of the hands of Trump appointees,’ she says. ‘If you don’t indict a sitting President, then the place to deal with it is in Congress.’

The Mueller Report has revived talk of impeachment, briefly quashed by Barr’s letter. Nevertheless, nothing has changed in US party dynamics to make a Senate conviction realistic. In the meantime, investigations intended to reveal potentially awkward truths proceed apace in the Democratic House of Representatives.

In early March, the Judiciary Committee sent 81 cover-the-waterfront document requests to Trump’s businesses, sons, executives, lawyers and advisers – with special attention to obstruction, collusion, hush money, emoluments and pardons. Also in March, the Foreign Affairs Committee requested documentation of all meetings or communications between the President and Vladimir Putin.

In early April, the Ways and Means Committee sought six years of tax returns from specified Trump businesses, under a 1924 tax law that states the Treasury Secretary ‘shall provide' it such data upon request. The Treasury is currently delaying through litigation. Also in April, the Financial Services and Intelligence Committees issued subpoenas to Deutsche Bank for information on its funding of Trump businesses; as well as to Citibank, JP Morgan and Bank of America. The Intelligence Committee is also digging into the proposed Trump Tower Moscow. Meanwhile, the Oversight Committee subpoenaed eight years of Trump financial statements from the accountancy firm Mazars. The Trump Organization has sued to block the subpoena.

Finally, the House Judiciary Committee has asked Mueller to testify by 23 May, and demanded to see the full un-redacted Mueller Report by 1 May. Chairman Jerrold Nadler says he plans to call Barr in the near future to testify about the ‘very concerning discrepancies’ between his summary and the report.

And there are further prosecutorial revelations to come. Of the 37 entities indicted by Mueller, political operative Roger Stone faces a November trial. Another known Mueller spinoff involves money paid on the Trump campaign’s behalf to quash gossip, which led to Trump’s ex-attorney Michael Cohen pleading guilty to a campaign finance offence. Another 12 spinoffs from the Mueller inquiry remain secret, though it’s known that New York federal prosecutors, as well as local prosecutors in DC and New Jersey, are probing Trump’s inaugural committee.