Robert Mueller’s report contains a catalog of misconduct by President Trump, detailing repeated efforts to undermine law enforcement investigations. But the special counsel also provides a detailed brief against a leading Washington lawyer who pursued an unsuccessful campaign to cause the Justice Department to shut down Mueller’s obstruction of justice investigation:
Last summer, Barr, a former attorney general for President George H.W. Bush, embarked on a campaign to lobby Deputy Attorney General Rod Rosenstein, who then oversaw the Mueller investigation, to order Mueller to stop investigating Trump’s obstruction. According to Barr, Mueller’s investigation was “fatally misconceived,” because the president is wholly immune from liability for exercising what Barr described as “discretion vested in him by the Constitution.” The mere prospect of allowing Trump to be “interrogated” about his conduct threatened to do “lasting damage to the Presidency and the administration of law within the Executive Branch,” Barr wrote.
More than 20 pages of the Mueller report are devoted to an explanation of why obstruction of justice statutes can properly be applied to the president, and much of that discussion is a detailed rebuttal of the arguments Barr made in the memo asking Rosenstein to shut down Mueller’s investigation of Trump.
As Barr went on to assert in a 19-page memo to Rosenstein, the president has plenary authority to stop or start a law enforcement investigation for any reason, including an investigation of the president’s own potentially criminal conduct. Barr therefore asserted that courts would not construe the federal obstruction of justice statute to reach Trump’s obstruction, and that – in any event – the Constitution would bar them from doing so. This, Barr asserted, is because the “Constitution . . . places no limit on the President’s authority to act on matters that concern him or his own conduct.”
Barr shared his memo with Trump’s defense team as well as White House lawyers, who previously made similar, but less developed, arguments in their own memo to Mueller’s team on behalf of the president. But Rosenstein did not shut down Mueller’s investigation, and until recently, it did not seem that Barr’s arguments were gaining traction.
But matters took a different turn when, at the end of last year, Trump fired Attorney General Jeff Sessions and nominated Barr to take his old job as the nation’s chief law enforcement official once again. Soon thereafter, Mueller delivered his final report to Barr, and on March 24, Barr released his misleading letter regarding the report.
Barr stated that Mueller had “l[eft] it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” That was false. The special counsel did not defer to Barr to reach a judgment about the president’s conduct. Rather, Mueller determined that, because binding DOJ policy categorically bars the indictment of a sitting president, it is improper for any prosecutor (presumably including the attorney general) to “apply an approach that could potentially result in a judgment that the president committed crimes” while Trump remains in office.
In his March letter and again in his press conference, Barr announced his own traditional prosecutorial judgment that Trump’s conduct does not merit indictment. This was not simply an act of filling in a gap left by Mueller; it was a direct challenge to Mueller.
According to the DOJ, one of the reasons a president cannot be indicted while in office is that “the Constitution specifies a mechanism for accusing a sitting President of wrongdoing and removing him from office”: impeachment. In his report, Mueller states that the issuance of a prosecutorial judgment upon Trump while he remains in office carries the risk of “preempt[ing] constitutional processes for addressing presidential misconduct;” that is, the needless issuance of such a prosecutorial opinion could improperly intrude upon Congress’s role of adjudging the president through impeachment proceedings. Barr also reasoned that such an advisory opinion would improperly impinge upon the role of prosecutors in a future administration to decide whether to charge Trump after he exits the White House.
The Mueller report contains a detailed, and extraordinarily damning, account of 10 separate categories of obstruction by the president. No reader can fairly walk away from the report without concluding that the Trump is probably a serial felon. Nonetheless, Mueller hews studiously to his commitment to avoid making a “traditional prosecutorial judgment,” and never opines on the president’s legal culpability.
Barr has yet to explain why he disagreed with Mueller and felt the need to issue an entirely superfluous judgment that Trump, who cannot presently be indicted under binding DOJ policies, should not be charged.
But the Mueller report itself offers a possible answer. It includes a detailed takedown of Barr’s argument that presidents cannot obstruct justice by manipulating the justice system they control.
Mueller’s legal arguments against Barr are complex, but, the issue at stake is simple, amounting, in Mueller’s words, to the “fundamental principle of our government that ‘[n]o [person] in this country is so high that he is above the law.’” Thus, Mueller states, Barr’s argument that Congress is barred from criminalizing efforts by presidents to frustrate law enforcement investigations is at odds with our constitutional system. Indeed, Mueller suggests, Barr’s argument is akin to the position of absolute executive privilege that the Supreme Court rejected when it compelled President Nixon to turn over the Watergate tapes.
When one considers that much of the Mueller report is a direct rebuke of Barr’s own expansive views of presidential prerogatives, it becomes less surprising that Barr has used the power of his newly assumed office to attempt to blunt, and even subvert, Mueller’s report.
But at the end of the day, Barr only has the power that the nation is willing to give to him. As Mueller states, Congress has a constitutionally assigned authority to investigate potential “presidential misconduct,” and to impeach a president if it so decides. Likewise, if the voters choose not to return Trump to office in 2020, there will be no bar to his indictment after he leaves office. In either event, the Mueller report will provide a valuable blueprint for holding the president to account for his crimes.