Barr’s letter said he and Rosenstein reached their conclusion about obstruction without relying on the current Justice Department policy that a sitting president may not be indicted. But he did not reveal that this same policy was central to Mueller’s own decision not to make a call on obstruction. Mueller’s report makes it clear he felt bound by this policy and did not believe he had the option of indicting the president. Accordingly, he concluded, it would be unfair to accuse the president of obstructing justice because he would be unable to back up that allegation with a criminal indictment. It is long-standing Justice Department policy not to accuse individuals of criminal wrongdoing if they will not be charged and thus will not have a chance to go to court to clear their names. In Mueller’s view, Justice Department policy effectively prohibited him not only from indicting the president but from even accusing him.
Barr also noted Mueller’s investigation did not establish that the president was involved in an underlying conspiracy with the Russians, and argued this undermined the evidence of intent to obstruct. Barr made a similar argument in the unsolicited 19-page memo on obstruction that he, as a private citizen, sent to Rosenstein back in 2018. But Barr’s letter did not reveal that Mueller’s report expressly rejects this argument. The report notes there were a number of other potential motives for the president to impede Mueller’s investigation, including Trump’s fear that evidence uncovered about Russian interference in the election could undermine the legitimacy of his election.
At the news conference he held on Thursday before releasing the report, Barr said that he and Rosenstein disagreed with some of Mueller’s legal theories. This likely refers to the argument, also advanced in Barr’s 2018 memo, that a president can never be charged with obstruction for official acts within his executive authority, such as firing the FBI director. But Mueller’s report persuasively refutes that argument as well. Mueller’s detailed legal analysis concludes the president is not immune from criminal liability for official acts done with corrupt motives, and that to hold otherwise would be inconsistent with the fundamental principle that no one is above the law.
Mueller’s report provides a devastating account of the president’s numerous attempts to interfere with the special counsel’s investigation. Mueller also notes that the president’s efforts to impede the investigation failed primarily because his subordinates resisted his obstructive demands; legally an endeavor to obstruct is sufficient, whether or not the obstruction succeeded. As a former federal prosecutor, I find it difficult to read the report without concluding that, if this case involved anyone other than a sitting president, the special counsel would have felt very comfortable recommending prosecution.
In short, Barr’s March 24 letter left the impression that Mueller punted on obstruction because the questions were simply too difficult and so the boss needed to step in and make the tough call. In reality, Mueller laid out overwhelming evidence of obstruction but declined to opine on the president’s culpability based solely on Justice Department policy. Barr also failed to disclose that Mueller and his team had emphatically rejected several of the legal theories that Barr and Trump’s attorneys have relied upon to excuse the president’s conduct.
With the report’s release, Barr’s attempts to spin its contents in the president’s favor have been exposed and discredited. Attention now will focus on how Congress will respond to the actual evidence, as opposed to Barr’s mischaracterizations. But there is another wrinkle: Once a president is out of office, Mueller notes, he is no longer immune from indictment. Putting aside any question of impeachment, if the president is defeated in 2020, the statute of limitations on obstruction of justice will not have expired. A new Democratic administration and attorney general may be forced to confront whether they should indict the ex-president. Mueller’s report leaves them a detailed road map to follow in making that decision.