The Attorney General vs. the Rule of Law

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A pretty strange headline, yes. But what can I say? Attorney General William Barr’s Senate testimony provided more insight into his thinking about the Mueller investigation, and what he thinks is troubling.

Who decides?

Recall that Robert Mueller stopped short of deciding whether or not the President had committed a crime. He accepted the Justice Department guideline that a sitting president cannot be indicted. He also believed that it would be unfair to accuse a president of a crime without indicting him, since the president would be deprived of the opportunity to clear his name in court. So he just laid out the facts, and then left it to Congress to begin an impeachment proceeding if the facts warranted it.

Attorney General Barr sees it very differently. He told Congress that a Special Counsel investigation is no different than any other criminal investigation. “Once a prosecutor has exhausted his investigation into the facts of a case, he or she faces a binary choice, either to commence or to decline prosecution. At the end of the day, the federal prosecutor must decide yes or no.” Barr went so far as to say, “I think that if he felt that he shouldn’t go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated”!

Apparently, Barr sees no value in an investigation that might lead to Congressional action rather than Justice Department prosecution. He prefers to keep a legal decision about the executive within the executive branch itself.

Since in Barr’s eyes, Mueller failed to do his job by not making a decision, Barr felt justified in making the decision for him, instead of referring it to Congress. In fact, he rushed to make it before Congress had a chance to see the report. He even referred to the case as “my baby.”

No obstruction?

Attorney General Barr’s judgment is that the President committed no crime. He bases his judgment of “no collusion” on Volume I of the Mueller report, which failed to find sufficient evidence of a criminal conspiracy. He bases his judgment of “no obstruction” on Volume II…or does he?

Actually, his four-page “summary” of the Mueller report says that the lack of conclusive findings in Volume I eliminates the “underlying crime” that is relevant to the President’s intent. If there was no conspiracy, what corrupt motive would the President have to obstruct the investigation? That enables him to clear the President without taking very seriously the voluminous evidence of obstruction in Volume II.

There is a gaping hole in this logic. If the evidence in insufficient to establish conspiracy, that could be largely due to a successful coverup. Mueller reported that “several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference.”

One can easily imagine a scenario in which the President does something wrong, but then obstructs the investigation so well that the wrongdoing cannot be firmly established. His Attorney General then concludes that the President couldn’t have had a motive to obstruct justice, since he hasn’t been proven to have done anything wrong!

But it gets worse. In response to Senate questioning, Barr also took the position that the President can rightfully terminate an investigation if it is based on “unfounded allegations.” Who decides if the investigations are unfounded? The President, of course. So an investigation to determine if the allegations are true becomes unnecessary.

That assumes that the President is the best judge of the legality of his own conduct. It also assumes that he is omniscient enough to know what everyone else in his campaign or administration is doing. For Barr, it is justification enough that President Trump had a “sincere belief” that his administration was unfairly under attack. How many of us would be willing to place our trust in this president’s sincerity?

The implications of this line of legal reasoning are mind-boggling. The Chief Executive gets to decide whether an investigation is warranted of allegations against himself and his associates. If he ends such an investigation, the Justice Department is fine with that, and Congress is deprived of the information it needs to exercise its impeachment authority under the Constitution. The idea that the administration can also stonewall Congress and not respond to legal requests for information is consistent with this reasoning. The supposedly co-equal lawmakers take a back seat to the executive, no matter how incompetent or corrupt. Goodbye rule of law, welcome back George III.

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