Not guilty, and not innocent – what?

Special counsel Robert Mueller did not find that President Donald Trump was guilty of obstruction of justice. It didn’t find him innocent, either.

Attorney General William Barr and Deputy Attorney General Rod Rosenstein have concluded that “the evidence is not sufficient” to charge Trump with obstruction of justice. But as a letter written by Barr to the House Judiciary Committee Sunday (summarizing the still-confidential Mueller report submitted to Barr and the Department of Justice on Friday) makes clear, that was Barr and Rosenstein’s decision — not Mueller’s.

Trump is already claiming that Barr’s letter is a “COMPLETE AND TOTAL EXONERATION” proving there was “no obstruction.” But it’s important to understand that Mueller didn’t draw that conclusion; Barr and Rosenstein did.

Whether Mueller intended for Barr and Rosenstein to make that decision — and whether it was appropriate for them to do so — is one of the biggest unanswered questions from Barr’s letter. And since House Democrats have already declared it will be a focus of their continued inquiries into the Mueller report, it’s a question that’s not going to go away.

In his letter, Barr explains that Mueller decided there was not sufficient evidence to “establish” that Trump or his associates were involved in Russian interference into the 2016 presidential election. But according to Barr, Mueller didn’t draw any conclusions or make any decisions about the second part of his investigation: whether Trump obstructed justice by interfering in the investigation of Russian interference. This could have included firing FBI Director James Comey in May 2017, a decision that Comey said Trump made after asking Comey to “go easy” on Trump’s former national security adviser Michael Flynn.

Instead, Mueller simply laid out the facts of Trump’s actions with regard to the investigation. Barr and Deputy Attorney General Rod Rosenstein used those facts, as well as conversations they’d had with Mueller over the course of the investigation, to draw a conclusion about whether Trump would meet the requirements to be charged with obstruction. Their conclusion, according to Barr, is that the facts they have wouldn’t be enough to charge Trump with obstruction.

But that’s not an explanation that House Democrats find satisfying. And they’re determined to keep pressing Trump’s Department of Justice to release more information about why Mueller punted — and what his report showed.

The obstruction section of Barr’s letter about the Mueller report, annotated

Here are the key passages from Barr’s letter explaining the obstruction-of-justice part of Mueller’s investigation and report:

The report’s second part addresses a number of actions by the President — most of which have been the subject of public reporting — that the Special Counsel investigated as potentially raising obstruction-of-justice concerns. After making a “thorough factual investigation” into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards regarding prosecution and conviction but ultimately determined not to make a traditional prosecutorial judgment.

This means that Mueller looked at the Department of Justice’s guidance to prosecutors about what level of evidence is necessary to indict someone but decided not to actually apply that rubric himself.

The Special Counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction […] the Special Counsel’s report states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

These two lines are almost certainly going to be seized on by Democrats as they call for more of Mueller’s findings to be made public. They’re the sentences that show that Mueller himself didn’t find Trump innocent — and out of context, they imply that Mueller certainly thinks Trump did something wrong. But in the context of Barr’s letter, it just means that Mueller was leaving the decision up to Barr and Rosenstein.

After reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.

If Barr and Rosenstein had decided the evidence was sufficient, it would have created a huge constitutional issue — because there’s no legal consensus on whether you can charge a sitting president with a federal crime. (Barr has made it clear that he doesn’t think it’s legal to do so.) But by deciding that the evidence wasn’t sufficient anyway, that issue has been avoided.

Of course, because Barr’s views on presidential prosecution are well known — and because Barr was appointed by Trump while the Mueller investigation was ongoing, and resisted Democratic calls to recuse himself from overseeing the investigation — Democrats and other Trump critics are likely to reject Barr’s conclusions as biased at best and corrupt at worst.

In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent, each of which, under the Department’s principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.

The text above is a mess of commas, but what it’s saying is that an obstruction-of-justice charge requires the government to meet a standard of “beyond a reasonable doubt” for three different things:

  1. There was “obstructive conduct;
  2. The conduct was related to a prosecution or investigation;
  3. The conduct was “done with corrupt intent.”

Barr is saying that he and Rosenstein didn’t see any actions described in the report that met that standard for all three elements.

Barr then mentions that many of the actions in question “took place in public view,” but it’s not clear if he emphasizes that just to make clear that Mueller didn’t uncover a ton of secret stuff or if he and Rosenstein decided Trump was less likely to be acting with “corrupt intent” if he was just tweeting it out.

We don’t know why Mueller punted on obstruction — or if he intended for Barr to make a decision instead

The critiques of Barr’s “no obstruction” declaration, from both elected Democrats and Trump-skeptical legal experts, fall into two broad categories: questions about why Mueller didn’t come to a conclusion about whether Trump could be charged with obstruction, and questions about whether it was appropriate for Barr to declare that Trump couldn’t be.

There are three main theories of why Mueller punted — some of which imply that Mueller didn’t expect Barr to clear Trump’s name, or at least to do it so quickly.

  • Theory: Mueller thought the obstruction case was simply too close to call. Barr wrote that Mueller characterized the obstruction investigation as raising “difficult issues” of both legal and factual analysis — one of the few times the letter quotes Mueller directly. It’s possible that Mueller simply thought the case was too close to call.
    If that’s true, it raises questions about whether Mueller expected Barr to make a decision — and whether he expected it to come so quickly. After all, Barr’s letter to Congress was released less than 48 hours after Mueller submitted the report to him.
    Barr makes clear that Mueller was keeping senior DOJ officials in the loop about some of the obstruction questions throughout the investigation, so it’s possible that he and Rosenstein already knew most of the relevant information in the report. But without knowing more about the process, it’s impossible to tell for sure.
  • Theory: Mueller wanted Barr to make the decision. Barr’s letter says that “The Special Counsel’s decision…lesves it up to the Attorney General.” Barr doesn’t explicitly say that Mueller asked him and Rosenstein to make the final call, but it’s possible that he did — perhaps because he thought it was too politically sensitive to leave to a Special Counsel investigation, or perhaps because he worried that his interpretation of the law and Barr’s would be different and wanted to defer to Barr in advance.
    This interpretation is more favorable to Barr than the others, but it doesn’t necessarily address Democrats’ concerns about whether Barr should have made the decision. It just means that Mueller thought it was okay for Barr to do so.
  • Theory: Mueller was trying to leave it up to Congress. Because of the tricky legal and factual questions Mueller grappled with on obstruction — not to mention the question of whether it is constitutional to indict a sitting president — it’s possible that Mueller decided he should present the facts and leave it up to Congress to decide what to do with them. In that case, by stepping in and declaring that Trump shouldn’t be charged, Barr would have warped Mueller’s report. If this is true, though, it raises the question of whether Mueller’s report explicitly says that the decision should be up to Congress (and whether, if it does say that, Barr can successfully prevent it from leaking).

Even if Mueller did intend for Barr to make the decision, though, some Democrats argue he shouldn’t have.

Key to this critique is an unsolicited memo Barr wrote before he was appointed Attorney General, and that didn’t come up in his Sunday letter to Congress. In that memo, Barr wrote that it wouldn’t be appropriate to charge a president with obstruction of justice simply for trying to direct federal investigations, because that was a power he had as head of the executive branch. (Some liberals believe this memo is the reason Trump appointed Barr six months later to replace Attorney General Jeff Sessions.)

Barr’s interpretation isn’t exactly the legal consensus. So for Barr to declare that Trump didn’t meet the standard for obstruction of justice (not least because he didn’t act with “corrupt intent”) doesn’t necessarily say anything about whether another prosecutor would agree.

To some Democrats, any involvement by Barr is illegitimate: Barr was appointed by Trump as the Mueller investigation was ongoing, to replace an attorney general who angered Trump by recusing himself from the Russia investigation. Barr promised not to interfere in the Mueller investigation, but the Attorney General is supposed to be the person deciding what happens to the final report anyway.

Rod Rosenstein’s involvement in the decision that Trump did not meet the standard for an obstruction charge might mitigate some of these concerns — after all, Trump has long distrusted Rosenstein. But Rosenstein was personally involved in some of the actions Mueller was investigating as obstruction — most notably, the Comey firing, for which Rosenstein wrote the memo providing an official explanation.

We may never know what Mueller said about obstruction — but Democrats are going to try

Eventually, at least some of the Mueller report is going to be made public. But that may not include any of the descriptions of Trump’s actions that might have constituted obstruction, or Mueller’s analysis of why they might or might not qualify.

Barr is responsible for deciding what parts of the report are released to Congress. He’s told Congress he needs time to redact information that could be relevant to a grand jury proceeding, and then will go through the rest and determine what can be released consistent with the law and “Department policies.”

The problem is that standard DOJ policies state that prosecutors shouldn’t release information to the public about “unindicted conduct” — for fear of making people seem guilty in the court of public opinion who aren’t being tried in a court of law. If Barr follows that standard, his decision that Trump shouldn’t be charged with obstruction would lead him to redact any information Mueller laid out in that regard.

House Democrats don’t plan to wait and see what Barr comes out with. Judiciary Committee chair Jerrold Nadler (D-NY) has already said he’s going to call Barr to testify, and that the obstruction call is going to be a focus of his inquiry. Mueller will also be called to testify before Congress, and Democrats are sure to ask what he told Barr about Trump and obstruction — and whether Mueller wanted his report to end with a simple call of “no obstruction.”

https://www.vox.com/policy-and-politics/2019/3/24/18279851/mueller-trump-obstruction-justice-exoneration

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