George J. Terwilliger III, a partner at the law firm McGuire Woods, served in the Justice Department for 15 years, including as deputy attorney general and acting attorney general.
Given all the politically driven discourse flying around the report by special counsel Robert S. Mueller III and Attorney General William P. Barr’s actions to get it released, it might be useful to step back and look at the report from the perspective of the law. It is, after all, the attorney general’s responsibility to see to the faithful execution of our laws.
If the time-honored practices of the Justice Department for how a regular prosecutor handles a case had been followed in the work of the special counsel, there would be no Mueller report. There would simply be an investigation, followed by a judgment — one made within federal prosecutors’ broad charging discretion — as to whether charges should be brought.
If yes, indictments are sought from a grand jury. If not, silence. No public commentary or prosecutor opinions about the case — either just charges or nothing, except perhaps an announcement that there would be no charges. There would be no commentary that would have the effect of “exonerating,” or not, anyone involved in the investigation. It is not the function of a prosecutor to “exonerate” anyone, nor to tender any other opinions, commentaries or speculation about the facts of the matter investigated.
But with the special counsel, the procedures are different. They require the special counsel to confidentially report to the attorney general what decisions he made and the rationale for those decisions. It is then up to the attorney general to decide, including by accounting for the public interest, to what extent to make that report available to the public and to other government officials. Long before he even saw the report, Barr said he intended to make as much of it available as the law allowed. That is just what he has done, even as his integrity is unmercifully attacked by allegations that he is shading the truth.
Many of these attacks are irresponsible and shameful. Accusations that the attorney general is flying air cover for the president; that he might be Trump’s new Roy Cohn; that, in summarizing the Mueller report before disclosing it, he was insulting Congress; that the redactions process is an artful coverup — all of these do nothing more than demonstrate that discourse by too many public officials has moved from the gutter into the sewer. The facts show that Barr has followed the letter and the spirit of the law.
Even though deciding whether to prosecute was fundamental to the special counsel’s core function, the special counsel expressly chose not to, citing in part prior Justice Department guidance on charging a sitting president. Instead, the special counsel reported all manner of his suspicions that there was obstruction, but said he cannot prove it for various reasons. That is the most damnable of abuses of the criminal-justice process, as Hillary Clinton found out in 2016 in the investigation of her handling of her emails.
Nonetheless, by not bringing obstruction charges, the special counsel did make a decision on obstruction. His avoidance to simply stating there would be no obstruction charge and his adding the gratuitous observation that the special counsel’s report “does not exonerate” the president is exactly why we should not have prosecutors, special or not, writing public reports on their investigations. The special counsel’s artful dodge resulted in the decision on obstruction being kicked up to the attorney general. Barr, in effect, articulated the decision that the special counsel had already made. All of the other noise, which will surely follow, arising from the on-the-one-hand and on-the-other recitations regarding obstruction in the report are legally irrelevant: Two prosecutors — the special counsel and his superior, the attorney general — both decided against obstruction charges. Case closed.
But, of course, in reality the “case” is not a legal matter that can simply be closed. It is instead a political brawl; the Mueller narrative is now a weapon in a fight for the heart and soul of core groups of citizens that constitute the electoral bases to be energized. The political calculus apparently dictates, “Who cares what is proper legal procedure, and so what if the rule of law loses, because we win!”
The attorney general is not only a lawyer whose résumé, past actions and professional station bespeak unquestioned integrity, but he is also a veteran of steering legal ships through political waters, including troubled and challenging ones. Lots of good lawyers can figure out the legal issues, can discern and argue what the law demands, requires or disallows. But it takes another dimension to take those conclusions to a rightful — rule-of-law-driven — end when they arise in a heated political atmosphere.
Barr did this nation a great service by volunteering to take the job of attorney general — something others were unwilling to do. He has doubled down on that commitment by spending precious personal credibility to do the job by the book. I hope virtue is its own reward, because I doubt he will see any other return for this extraordinary gift to the country.