During his testimony before the Senate Judiciary Committee on Wednesday, Attorney General William P. Barr said he was “surprised” that special counsel Robert S. Mueller III had declined to make a traditional prosecutorial judgment concerning whether President Trump had obstructed justice. Earlier news reports also suggested Barr and his staff had expressed some consternation over Mueller’s decision. But Barr had an easy solution available: He could have ordered Mueller to make the call on obstruction. That he failed to do so only serves to heighten the suspicions surrounding Barr’s actions in the wake of Mueller’s report.
Barr testified on Wednesday that he didn’t fully understand Mueller’s reasons for failing to reach a conclusion on obstruction. But Mueller’s report is clear: The special counsel felt bound by the Justice Department policy that a sitting president cannot be indicted. It is also Justice Department policy not to accuse someone of wrongdoing without charging him or her; because the accused has no opportunity to go to court and clear his or her name. These concerns are heightened where the president is involved, Mueller noted, because an accusation of criminal misconduct could burden the president’s capacity to govern. These policies together, Mueller concluded, meant it would be inappropriate for him to accuse the president of criminal misconduct.
But Barr testified he believed it would have been inappropriate and contrary to the Justice Department’s mission to release Mueller’s report without an up-or-down decision on whether the president obstructed justice. Accordingly, he and Deputy Attorney General Rod J. Rosenstein made their own decision that the evidence presented by Mueller did not establish obstruction of justice. Barr reported that conclusion in his controversial four-page letter to Congress in March that purported to summarize the Mueller report’s principal conclusions.
Barr has oddly portrayed himself as seemingly powerless in the face of Mueller’s decision. He has suggested he really had no choice but to step in and decide the issue himself. But if Barr truly believed it was crucial for the Justice Department to reach a conclusion about whether the president obstructed justice, he had an obvious and far better option: Direct Mueller to make that decision.
Mueller reportedly first told Barr he did not intend to reach a decision on obstruction during a meeting on March 5, several weeks before the report was finished. At or following that meeting, Barr could have said to Mueller: “Bob, I understand what you’re saying. But in this case, the American people deserve to hear our legal conclusion. Your report to me needs to include your judgment, as the prosecutor who headed this investigation, about whether the president’s conduct amounted to obstruction of justice.” There’s no question Barr had the authority to give Mueller this order. The special counsel regulations give the attorney general the authority to overrule any proposed action by the special counsel if he thinks it is inconsistent with established Justice Department practice. That’s exactly how Barr has characterized Mueller’s decision.
Think how much better off we would be now if Barr had told Mueller to make a call on obstruction. The public would have the legal conclusions of the neutral, veteran prosecutor who actually oversaw the investigation. Instead, the public was left with the opinion of the president’s attorney general — a man who, before his appointment, called Mueller’s obstruction-of-justice theories “fatally misconceived,” who had Mueller’s report for only a brief time, and who, according to his testimony on Wednesday, did not review the underlying evidence.
The entire point of having a special counsel is to take prosecution decisions out of the hands of political appointees such as Barr and thus give those decisions more credibility. If Mueller himself had said the evidence did not establish obstruction, that conclusion would be more readily accepted by the public. Conversely, if Mueller had concluded the president’s conduct did constitute obstruction, then the public and Congress would have an impartial assessment of the president’s actions to guide their future decisions.
Instead, Mueller’s adherence to what he saw as Justice Department policy created a void that Barr rushed in to fill. That almost certainly was not what Mueller intended. We recently learned Mueller wrote to Barr on March 27, expressing concern that Barr’s summary to Congress “did not fully capture the context, nature, and substance” of Mueller’s work and report. This simply highlights the confusion and uncertainty that have resulted from Barr’s decision to take it upon himself to reach the ultimate conclusion in the special counsel’s investigation.
Barr might have believed it was necessary for the Justice Department to make a decision about the president’s possible obstruction. But it wasn’t at all necessary for him to make that decision himself. The more logical and far preferable action would have been to require Mueller to make the call. Barr’s failure to do so only fuels suspicions that he thought he knew what Mueller’s answer would be — and that Barr, and the president, wouldn’t like it.