Barr’s presentation was tendentious in both substance and form. In substance, his suggestion that President Trump’s anger and frustration at the probe was an indication that he lacked criminal intent to obstruct is dead wrong; if anything, Trump’s erratic fury points in the direction of obstructive intent. And it must be troubling for the Justice Department and the FBI, which looked to Barr as an incoming guardian, to see him simply ignore the president’s vicious, unprecedented assault on law enforcement over the life of the probe.
The style and form of Barr’s news conference was even more one-sided. Barr crescendoed repeatedly at his several declarations echoing the president’s mantra of “no collusion” (even using that legally meaningless term). And the most bizarre aspect of the entire performance was his sympathetic portrayal of the president’s overwrought state of mind, resembling every bit a personal defense attorney rather than the chief law enforcement officer of the United States.
Next, Deputy Attorney General Rod J. Rosenstein left an unfortunate final image of his long tenure at the department, by standing mutely behind Barr and lending his stature to Barr’s conclusion and approach. Rosenstein will be remembered not just for a lonely effort to stand up to an assault from Trump and congressional Republicans, plus his original, commendable decision to appoint Mueller, but also for stumbles in judgment along the way.
Next, it has to be said that Superman himself met some kryptonite. There had been speculation that Mueller had declined to make a bottom-line, “traditional prosecutorial determination” in order to leave that decision to Congress. Mueller alluded to that option in the report, but he offered up what was essentially a non-decision. After outlining 10 episodes of eyebrow-raising conduct by the president, Mueller climaxed with a fairly meek and cryptic conclusion that he didn’t think he could make that call.
That non-decision opened the door to Barr to say, reasonably, that prosecution decisions are binary — yay or nay — and Mueller had left a gap that Barr was justified, if not required, to fill.
There is, however, another interpretation of Mueller’s conduct. At the very end of the voluminous report, Mueller writes that “the conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” This statement of first constitutional principles certainly suggests the appropriateness of Congress’s now reaching its own judgment about obstruction.
Also, Mueller’s decision not to subpoena the president now, and for years to come, will be subject to additional scrutiny. The report concludes — correctly — that there was authority to bring the subpoena, but then suggests it would have taken too long to litigate the issue. But it adds that “we believed we had sufficient evidence to understand relevant events.” This indicates that Mueller believed he did have sufficient evidence of intent based on circumstantial evidence, which often is the way intent is proven in cases of obstruction; why then did he ultimately conclude otherwise?
As for the president, who was already preparing for a victory lap before Barr took the stage, it is another shameful day. The Mueller report adds to the many publicly known instances of shabby and obstructive presidential conduct. Most notably, it reveals that Trump repeatedly pressured then-White House counsel Donald McGahn to fire Mueller and subsequently pressured him to lie about it.
At this point, however, Congress inherits the whole muddy situation, and both Barr and Mueller recede in importance. The judgment of the gravity of the president’s conduct becomes essentially political, and fine-grained criminal law questions are largely beside the point. It remains to be seen whether Congress as a whole has the wherewithal to take on that responsibility — or whether, as Barr and Trump apparently hope, enough of them will be content to invoke Barr’s judgment and declare the case closed.