The first puzzling aspect of the Barr letter is its report that Mueller, after making a thorough factual investigation of evidence bearing on possible obstruction of justice, “determined not to make a traditional prosecutorial judgment.” Mueller’s report, we are told, is rather perfectly fence-straddling, stating only that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”
So Question No. 1: Why did Mueller, whose charges as a prosecutor include making precisely these sorts of judgments and bringing them to a federal grand jury, decline to do so in this case? Obviously, he was able to reach decisions with respect to the 37 individuals or companies that he charged over the course of his investigation. What extra-prosecutorial considerations caused the famously dutiful and thorough Mueller to leave such a core part of his job unfinished?
Barr’s letter then informs Congress that he and Deputy Attorney General Rod J. Rosenstein decided to step into the breach. Barr writes that Mueller’s decision “to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” But this cryptic statement is really just a description of the gap, not an explanation for why Barr stepped in.
That raises the second critical question: Did Mueller ask Barr to step in? Or is Barr simply asserting a general power to reach conclusions for the Justice Department that Mueller thought he himself couldn’t or shouldn’t? While in some bureaucratic sense, the attorney general, as head of the Justice Department, bears responsibility for all of the department’s decisions, I am unaware of a single instance in my years in the Justice Department in which a final prosecutorial decision was left to the attorney general without so much as a recommendation from the actual prosecutor.
We need to know the answer. If, say, Mueller’s reason for refusing to exercise this judgment was that he believed the involvement of the president made the question a political one for Congress, Barr’s move would represent a rank overruling of a key conclusion of Mueller, as well as a power grab from Congress.
The final unanswered question, and perhaps the most consequential: What was the nature of the analysis that Barr and Rosenstein applied in deciding that Mueller’s evidence was not sufficient to establish that the president committed obstruction? The consensus of many scholars and commentators, based just on the publicly available evidence, has been that the case for obstruction was strong. Did some additional confidential evidence sway Barr and Rosenstein? Was it some particular legal reading of the obstruction statute?
This last possibility is unsettling. Barr’s letter says that he and Rosenstein consulted with the department’s Office of Legal Counsel before coming to their conclusion. This raises the possibility that the Barr analysis is premised on some controversial and expansive view of executive power that neither Congress nor the courts would endorse.
We know that Barr wrote an unsolicited letter to department officials before he took office that could be read to embrace the view that the president cannot obstruct justice while exercising his enumerated powers, such as the pardon power, regardless of his motive for doing so. It would be an outrage if this were the basis for Barr’s and Rosenstein’s decision. That is not simply because the view is thoroughly wrong and discredited — which it is — but because it would effectively preempt, or sharply hamstring, the ability of both coordinate branches to decide the question.