Reprinted with permission from the Alliance For Justice blog Yeomans Work.
It is generally understood that President Donald Trump picked William Barr to be attorney general because Barr had written a 19-page memo debunking Special Counsel Robert Mueller’s possible obstruction of justice case against Trump. Now Barr has performed the function for which Trump selected him. Barr’s decision to override Mueller’s refusal to exonerate Trump of obstruction of justice in the Russia probe plunked a giant thumb on the scales of justice and gave Trump the political message he so desperately craved: no collusion and no obstruction – complete exoneration. As commentators lavished praise on our institutions for allowing the Mueller investigation to reach its conclusion, Barr reignited cynicism about the apolitical nature of law enforcement.
Barr acknowledged in his letter that Mueller had concluded there was significant evidence of obstruction of justice, but had decided not to make a prosecution-style decision. That sounds like a punt by Mueller, but I think it is more properly read as an acknowledgment that the Department of Justice would not indict a sitting president, so there was no need to decide whether DOJ could prosecute. Rather, Mueller recognized that the ultimate determination regarding consequences for obstruction rests with Congress. He, therefore, laid out the evidence, for and against, for Congress’s enlightenment.
Barr, however, interpreted Mueller’s failure to reach a conclusion as passing the final decision to the attorney general. That’s an odd determination unless Mueller expressly asked Barr to make the call. We have no indication that he did so. Given DOJ policy against indicting a sitting president, there is no need for DOJ to decide whether the president could be prosecuted. The only call is for Congress to make: whether the president should be impeached — and impeachment does not require that the president have been adjudged guilty of a crime.
Barr’s intervention appears nakedly political. His move strikes at the very reason we have special counsels. They are necessary for the investigation and prosecution of high-ranking government officials. The notion is that the potential for actual partiality or the appearance of partiality is too great when government officials investigate their own. The idea is to remove these investigations from the political chain of command to the greatest extent possible. Barr’s refusal to accept Mueller’s conclusion is precisely the kind of political intervention the special counsel system is designed to avoid. The Mueller report now goes to Congress with a cover letter from the attorney general stating that Trump did not commit the crime of obstruction of justice, rather than simply stating that there exists substantial evidence of obstruction of justice and laying out the evidence.
Obviously, it is essential that Congress and the public see Mueller’s report as quickly as possible. While Mueller may not have pursued a conspiracy indictment for illegal cooperation with Russia, Congress and the public still need to see whether the investigation uncovered dealings between Russia and the Trump campaign. To state the obvious, our standard for evaluating a president must demand more than the fact that he has not been convicted of crimes.
Regarding obstruction, Mueller obviously thought there was troubling evidence against the president. That should be Congress’s starting point, rather than Barr’s gratuitous overriding of Mueller. Congress will need the full report and essential supporting documents to acquit its constitutional obligation of determining whether to commence impeachment proceedings. It will also need to hear directly from Mueller and Barr.
Congress has at least three hurdles to surmount to get the report, but it must succeed. First, the report must be scrubbed to remove classified material or information that might affect ongoing investigations. The report also likely contains grand jury material. Grand jury material is secret and its disclosure can be a felony. It can be made public by court order, but DOJ or Congress will have to seek one and the final decision whether the need for the information surmounts the interest in grand jury secrecy rests with the court.
Finally, the president can assert executive privilege over communications with his close advisors and their communications with others designed to obtain information to advise the president. Executive privilege can also extend to matters involving national security and law enforcement. While executive privilege yielded to a criminal trial subpoena for the Watergate tapes, and should yield if Congress is seeking the evidence as part of an impeachment inquiry, the president may choose to litigate, arguing that he must protect the privilege for future chief executives. Prior to the report’s completion, there was bipartisan support for its release, including from the president. It will be disappointing if the president and his supporters develop a new affection for opacity.
Even with a cooperative executive branch, Mueller’s report will not reach Congress or the public without some delay. A recalcitrant executive can extend the delay. The task for Congress and the public is to ramp up the pressure to share the full report and supporting materials as quickly as possible. After all, according to Trump, he has been cleared. He should want the public to see the evidence.
Bill Yeomans is the Senior Justice Fellow at Alliance for Justice. He previously taught constitutional law, civil rights, and legislation at American University Washington College of Law. He previousy served for 26 years in the Department of Justice, where he litigated cases involving voting rights and discrimination in employment, housing, and education, and prosecuted police officers and racially motivated violent offenders before assuming a series of management positions, including acting Assistant Attorney General.