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.
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).
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.
“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.