The redacted version of special counsel Robert S. Mueller III’s report made one thing quite clear: Attorney General William Barr has gone out of his way to try to exonerate the president. But Barr’s comments about obstruction of justice have been deeply flawed — and at odds with the spirit of the regulations governing this type of politically sensitive investigation by a special counsel. (One of us, Neal Katyal, drafted those regulations in the late ’90s.)
Mueller noted in the report that his office decided not to make a “traditional prosecutorial judgment” on whether Trump had obstructed justice, because the Justice Department has a policy not to indict a sitting president. But Barr has misleadingly implied that the longstanding policy wasn’t any part of the reason for that decision. That is not the case. Mueller says right at the outset of the report’s second volume, where Barr wouldn’t have missed it, that he felt bound by that policy: “We determined not to apply an approach that could potentially result in a judgment that the President committed crimes.”
So Trump’s claim, based on Barr’s spin, that the Mueller report exonerates him is flatly untrue. Mueller said, in effect, Because I’m investigating a sitting president, I cannot indict him, and therefore I won’t call him a criminal even if he’s guilty as sin. He also explicitly wrote that if “the President clearly did not commit obstruction of justice, we would so state . . . However, we are unable to reach that judgment.” Mueller couldn’t indict the president, but he could have cleared him. He didn’t.
Yet with the stroke of a pen, Barr — a political appointee named to the job by Trump — injected his own judgment as an ill-fitting exclamation point on what Mueller deliberately left as an unfinished sentence.
Barr has at times appeared to take the position that a prosecutor must prove an underlying crime to bring an obstruction charge. But there is nothing in the text or purpose of the obstruction statutes that suggests this. Obstruction is a separate and independent offense. It has to be, or else someone could commit a crime, destroy all the evidence, then turn around and invoke the Fifth Amendment privilege against self-incrimination. If proof of an underlying crime were necessary to charge obstruction of justice, a suspect could make himself un-indictable through his own misconduct — indeed, his own obstruction. As Mueller says in his report, “The obstruction statutes do not require proof of such a crime.”
At times, Barr has appeared to take a less extreme view: While “not determinative,” he said in his earlier four-page summary of Mueller’s report, the existence of an underlying crime is relevant to whether the president acted corruptly. But obstruction of justice has three elements: an obstructive act, a connection between the obstructive act and an official proceeding, and a corrupt intent. Barr’s summary recognizes only the last piece — corrupt intent — and suggests that the absence of an underlying crime means Trump did not act corruptly if he interfered with an investigation into that possible crime.
In these cases, though, corrupt intent generally means “knowingly and dishonestly” or “with an improper purpose.” There are many ways to act improperly beyond covering up a crime, let alone a proven crime. That’s why former Detroit mayor Kwame Kilpatrick was successfully prosecuted for obstruction of justice for trying to stymie an investigation into an extramarital affair, even though the affair wasn’t criminal, and why Martha Stewart was convicted of obstruction even after the underlying securities fraud charges against her were thrown out. And it’s why, in a recent federal case, an appeals court noted that you can be guilty of obstruction even if your “primary motivation is to extricate the sister of [a] childhood friend from a troubled situation.”
In his news conference Thursday, Barr argued that Trump’s interventions regarding the special counsel’s work — the president tried to limit the investigation and even have Mueller fired — stemmed from frustration , as if that cleared Trump of obstruction. But ending frustration with an ongoing investigation is precisely the type of improper motive that can sustain an obstruction of justice charge.
For Barr to saunter into the Justice Department after almost two years of intensive work by experts there and make his own snap judgment on the matter certainly tramples on the vision for an insulated special counsel to grapple with such complex questions. His approach will no doubt elicit some very tough questions from Congress the next time Barr is on Capitol Hill for testimony.
Mueller recognized the centrality of Congress’s role. He obviously saw the obstruction question as a tough judgment call. As he intimates in the report, he didn’t make that call himself because he thought Congress — not the attorney general appointed by Trump — was the appropriate body to make it. Because a sitting president cannot be indicted, Mueller wrote, it would be inappropriate to recommend prosecution; Trump would not have the chance to try to clear his name that an individual actually charged with a crime might. But that rationale does not apply to impeachment proceedings.
So Mueller’s decision not to decide on the obstruction question puts the inquiry right where it belongs: with our elected representatives. This was not an abdication. It reflected sound judgment about how claims of this sort should be adjudicated in our constitutional structure, and it’s exactly what Leon Jaworski did during Watergate. He didn’t say, “President Richard Nixon obstructed justice.” He just laid out the information so that Congress could draw its own conclusions. Such historical precedents informed the language of the special counsel regulations, which specifically demand from the attorney general, at the end of a special counsel’s work, certain notifications that could prompt congressional action if the Justice Department declines to act.
Mueller’s pivot toward Congress makes good sense. A number of the possible acts of obstruction were bound up with the president’s official responsibilities — for instance, Trump’s decision to fire former FBI director James Comey. On the one hand, Trump may have acted with corrupt intent; on the other hand, the president does have the power under Article II to fire subordinates, including the FBI director. That gives any possible obstruction charges against Trump a uniquely political flavor. And, as Alexander Hamilton explained, we have a particular constitutional process for adjudicating claims of a political nature: impeachment.
Impeachment is reserved for “high Crimes and Misdemeanors,” meaning, in Hamilton’s words, offenses that flow “from the abuse or violation of some public trust.” When the president interferes with an investigation for improper reasons, it is an abuse of the public trust in a way that a normal obstruction of justice crime is not. That means the impeachment process is well-suited to evaluating it. It is no accident that the impeachment articles for Nixon and President Bill Clinton included those for obstruction of justice.
The point here is not to say that Trump obstructed justice or that he should be impeached. Our concern is with law and process: Corrupt intent is a complex question, especially when evaluating the behavior of the president. But Barr has put too much emphasis on whether there was an underlying Russia-related crime. That might be defensible if he were Trump’s personal attorney, making the best case he could for his client. That’s not Barr’s role, though. He’s the attorney general of the American people, and he’s been handed a report by a crack prosecutorial team that lays out 10 instances in which Trump possibly obstructed justice. Barr shouldn’t be offering a rebuttal. He should be offering the report to Congress — and then leaving it to lawmakers to determine what comes next.
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