obstruction-of-justice-congress

Kevin McCarthy’s threatens phone companies against cooperating with subpeanas

House Minority Leader Kevin McCarthy issued a threat to phone and social media companies that cooperate with the House select committee investigating the Capitol riot.

The Mueller Investigation Was Always an Impeachment Probe

There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.

And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.

Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)

This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.

Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.

To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.

In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.

Once you understand that, it is easy to see what happened here.

Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).

The attorney general believes that (a) obstruction charges may not be based on exercises of a president’s constitutional prerogatives — only on obviously corrupt acts (e.g., evidence destruction, bribing witnesses); (b) all executive power under the Constitution is reposed in the president; and thus, (c) when the chief executive takes actions the Constitution empowers him to take (e.g., firing or threatening to fire subordinates), it is not the place of an inferior executive officer, such as a federal prosecutor, to second-guess them as “corruptly motivated.” Recognizing how traumatic accusing a president of a crime is for the country, moreover, Barr thinks an obstruction offense would have to be crystal-clear and serious — you don’t tear the nation apart over something about which reasonable minds could differ.

By contrast, Mueller’s staff believes that (a) the executive bureaucracy is semi-autonomous in its areas of expertise, and thus Justice Department prosecutors are supreme, even over the president, in matters of law enforcement; (b) Congress had the constitutional power to, in effect, transfer executive authority from the president to prosecutors by enacting obstruction laws that may be enforced against the president; and therefore, (c) even if a presidential action is lawful in itself, a prosecutor may allege obstruction if the prosecutor believes the president’s motive was corrupt. Furthermore, little or no consideration should be given to whether a president’s allegedly obstructive act is especially clear or serious because the president (at least if the president is a Republican) must be treated like anyone else — otherwise, the president is placed above the law. (Democratic presidents, to the contrary, are the law — see, e.g., DACA, Obamacare decrees, IRS harassment of conservative groups, Fast and Furious stonewalling of Congress . . .)

Playing Out the Alternative Scenarios
This drastic divergence on what can constitute an obstruction offense had practical consequences here.

For most of his investigation, Mueller was “supervised” by acting AG Rod Rosenstein, who did not comply with special-counsel regulations in appointing him, and who promised Democrats that he would be effectively independent. As long as the studiously passive Rosenstein was at the helm, the staff-driven Mueller was free to investigate under his loose, envelope-pushing obstruction theory. Once Barr became AG, however, it was clear that Mueller’s theory was not going to fly.

So, let’s play out the alternative scenario.

Let’s say that, having convinced himself he had a strong obstruction case, Mueller decided to recommend that the president be charged. That would have forced a confrontation over the issue that has been sidestepped: What are the correct standards for evaluating an obstruction allegation against a president? There would have been a brawl at Main Justice. The report would have been held up while the matter was debated.

More to the point, Mueller and such top staffers as Andrew Weissmann and Michael Dreeben, who have operated at the top echelon of the Justice Department, would have known that the attorney general would win such a battle ten times out of ten. That goes double for an AG such as Barr, a highly regarded legal thinker who, besides now being AG twice, ran the OLC in the Bush 41 administration. He was not going to be intimidated or bulldozed by Mueller’s staff.

Remember: Mueller’s staff is looking at this as if they were congressional impeachment counsel. Their objective is to get their evidence to Congress bearing something close to the stamp of an indictable felonies.

Consequently, direct confrontation with the AG was the last thing they wanted. It would have guaranteed failure. The Mueller report’s discussion of obstruction standards would not have gotten out the Main Justice door as an authoritative statement of the law. There would have been a revised articulation of obstruction law as it applies to the president. There would have been vigorous debate over the eleven instances of obstruction Mueller wanted to allege. The report would have been scrutinized carefully by Justice Department lawyers, especially where it plays fast and loose with the facts (see, e.g., my Papadopouolos column). It might never have been released. If it had been released, it would have been discredited or dramatically revised.

That would not have helped the impeachment cause.

So . . . Plan B: What if we decline to make any recommendation on obstruction?

Mueller’s staff calculated: If we don’t press the point of indicting the president, the AG and the Justice Department have no reason to dispute our findings, or even take on our analysis of obstruction law. They’ll be so relieved to avoid a fight over obstruction charges, they’ll be willing to let all that slide. And with Congress demanding the report, and the AG having promised maximum transparency in his confirmation hearings, we will achieve our objective: Congress will get our obstruction evidence, with an accompanying legal analysis that tends strongly in favor of finding felony obstruction. That will be the basis for any impeachment proceedings.

This, then, became the plan: Mueller would decide not to decide.

There was just one problem: Mueller would need a reason for not deciding. Barr was sure to ask. Mueller could not truthfully respond, “Well, we see ourselves as congressional impeachment counsel.” Barr has been quite clear (and quite right) that federal prosecutors exist to enforce the law, not to do Congress’s work — Congress has its own bloated staff for that.

Mueller’s staff would need to come up with something that would pass the laugh test. After all, there was no collusion case, so rendering a prosecutorial judgment on the obstruction question was the only thing for which a special counsel had arguably been needed. Now, Mueller was about to tell the AG he would be abdicating on that. He’d be asked to explain himself, and if he didn’t have a compelling answer, he’d need to stall.

It happened on March 5, during Barr’s first meeting with Mueller after being confirmed. Taken aback by Mueller’s announcement that he would not be deciding the obstruction question, Barr pressed him repeatedly: “Is it because of the OLC guidance?” Mueller insisted that it was not. When asked what, then, was the reason, Mueller meandered about how they were still formulating their rationale.

Get it? Result-oriented: Decision first, then we’ll cobble together the reasoning.

Why would Mueller do this? Again, play out the alternative scenario.

If the special counsel had told Barr that the OLC guidance was his rationale for not deciding, Barr would likely have told him, “Don’t worry about the OLC guidance, that’s not your job. The OLC guidance only says we can’t return an indictment now. We still need to know whether there is a prosecutable case. Just make a recommendation on that, one way or the other.”

If that had happened, Mueller would have been cornered. If he recommended in favor of indictment, he would have ended up in the confrontation with Barr over obstruction law that he was trying to avoid. If he recommended against an indictment, he would have undermined the impeachment effort.

So he punted. And it worked.

Mueller told Barr he was still formulating his rationale for not deciding the issue. Maybe the staff really was still trying to come up with a coherent explanation; or maybe in the back (or front) of their minds, they figured “we’re still formulating” was vague enough that they could ultimately rely on the OLC guidance, even if Mueller had said it was not his rationale.

Whatever the calculation was, two and a half weeks later, when Mueller delivered his final report to Barr on March 22, Mueller and his staff expressly invoked the OLC guidance.

Does that mean Mueller was being dishonest on March 5? Does it mean his thinking truly was still evolving?

What difference does it make?

What matters is that Mueller’s shrewd staffers accomplished exactly what they hoped to accomplish: Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.

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And now, for good measure, Mueller took pains on Wednesday to stress that, in our system, it is Congress’s duty to address presidential misconduct.

For partisan lawyers who saw their special-counsel gig as an opportunity to play congressional impeachment counsel, it is Mission Accomplished.

William Barr Explains Finding of No Obstruction on Mueller Probe

Attorney general appears before a Senate panel after letter indicates dispute over characterizing special counsel probe

Mr. Barr said at the Wednesday hearing he was surprised that Mr. Mueller wouldn’t reach a conclusion about obstruction, and he said he conveyed that message to the special counsel in a March 5 briefing. Among other reasons, Mr. Mueller cited a longstanding Justice Department policy against indicting a sitting president. Mr. Barr said he pressed Mr. Mueller for more about his reasoning.

“If he felt he shouldn’t go down a path of making a traditional prosecutive decision then he shouldn’t have investigated,” Mr. Barr said. “That was the time to pull up.”

.. “Fairness concerns counseled against potentially reaching” a judgment that Mr. Trump committed crimes “when no charges can be brought,” Mr. Mueller wrote in the report. Mr. Barr subsequently determined that the evidence Mr. Mueller’s investigation developed was insufficient to establish a crime Mr. Barr said in a March 24 summary of the Mueller findings that he and Deputy Attorney General Rod Rosenstein concluded the evidence gathered wasn’t enough to establish an obstruction-of-justice offense.

Opening statements by the chairman and ranking member of the panel reflected the deep partisan divide that has shaped how Mr. Mueller’s report—and Mr. Barr’s characterization of it—has been received.

South Carolina Republican Lindsey Graham, who chairs the panel, and California Democrat Dianne Feinstein focused on vastly different points in their statements.

Mr. Graham said that the president couldn’t have obstructed justice if there was no underlying crime committed by Mr. Trump’s campaign associates. Mr. Mueller’s probe didn’t establish that members of the Trump campaign conspired with the Russian government.

“Attempted obstruction of justice of a crime that never occurred seems to be the new standard around here, to me it doesn’t make any sense,” Mr. Graham said.

Under the law, obstruction doesn’t require a successful effort. Nor does a prosecutor need to prove there was an underlying crime that a suspect was covering up.

Ms. Feinstein took an opposite tack. “Contrary to the declarations of the total and complete exoneration,” the report contained “substantial evidence of misconduct,” Ms. Feinstein said, referring to descriptions in the report that showed how the Trump campaign had welcomed, encouraged, and expected to benefit from Russia’s interference and how Mr. Trump tried to limit or influence the investigation.

In his report, Mr. Mueller cited in part Justice Department guidance as a reason he didn’t pursue obstruction charges.

A centerpiece of the hearing was the letter sent by Mr. Mueller to the attorney general on March 27. The letter, released Wednesday morning, showed that Mr. Mueller twice encouraged Mr. Barr to quickly release a fuller account of his team’s Russia investigation and expressed concerns that Mr. Barr’s early portrayals had failed to capture the nature and context of his team’s work and findings.

“There is now public confusion about critical aspects of the results of our investigation,” Mr. Mueller wrote. “This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of investigation.”

But Mr. Barr testified Wednesday that, while he asked Mr. Mueller to make redactions in order to hasten the report’s release, he found when he received it on March 22 that it still contained grand jury material that couldn’t be made public. He said he knew it would take weeks to make the edits.

At least two prominent members of Congress have called on the attorney general to resign, and Democrats on the Senate panel are already accusing Mr. Barr of ignoring Mr. Mueller’s letter in an effort to protect Mr. Trump.

After Mr. Mueller sent the letter, he told Mr. Barr in a phone call that nothing in Mr. Barr’s summary was inaccurate or misleading but expressed frustration over the lack of context and resulting news coverage of the case, according to a person familiar with their discussion. Mr. Mueller urged Mr. Barr to release more information.

In his opening remarks, Mr. Graham devoted much of his time to quoting from emails exchanged between an FBI agent and a Justice Department lawyer criticizing Mr. Trump during the 2016 campaign.

Chris Wallace: Barr’s decision to make a conclusion on obstruction is ‘troubling’ and ‘politically charged’

“Fox News Sunday” anchor Chris Wallace said Friday Attorney General William Barr’s decision to make a conclusion on the question of obstruction of justice “seems even more troubling, and perhaps even more politically charged when you read the report.”

Wallace made the comment on “America’s Newsroom” Friday referencing Barr and Deputy Attorney General Rod Rosenstein ‘s determination there was not sufficient evidence on the obstruction front even though Special Counsel Robert Mueller did not reach a conclusion on whether President Trump committed this offense.

“When you read the report it becomes clear that the reason that Robert Mueller didn’t make a finding on obstruction wasn’t because he didn’t feel capable of doing it, but because he thought in direct contradiction to what Bill Barr said yesterday, that under department guidelines, there could not be an indictment of a sitting president, and he very much left it to Congress to make that decision,” said Wallace Friday.