Barred from Obstruction

Why the Attorney General’s unilateral exoneration of the President for obstruction is not only grossly misleading, but detrimental to the rule of law and the U.S. Constitution.

On April 18, 2019, Attorney General William P. Barr delivered remarks on the Mueller Report prior to publishing a redacted version of its 448 pages. In addition to dismissing potential charges of conspiracy to collude with Russia during the 2016 election, Mr. Barr highlighted that the “evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.” Mr. Barr found that the President had a “sincere belief that the investigation was undermining his presidency”, therefore permitting him to counter the supposed “witch hunt.” Never before has such a vast exception to obstruction been articulated by anyone, let alone the chief law enforcement officer of the United States.

Despite the fact that nobody interviewed Donald J. Trump to assess his “corrupt intent” – a pivotal factor for an obstruction charge – and that when asked about his 2016 presidential campaign, the man who once claimed that he had “one of the world’s greatest memories” could not remember basic details, Mr. Barr still found it appropriate to conclude that Mr. Trump did not obstruct justice. Now that the Mueller Report is available to the public – albeit in redacted form – it has become clear that Mr. Barr overstepped and mischaracterized the extensive evidence of obstruction against Mr. Trump. The decision to exonerate Mr. Trump was not one for Mr. Barr to decide. The special counsel and his team made the prudently conscious decision to defer whether to seek impeachment of this sitting President, which is consistent with the well-established Constitutional process of impeachment that is the responsibility of Congress as representatives of the American people. Had the special counsel made a prosecutorial decision to indict Mr. Trump on obstruction, it would have potentially preempted this process by indicting a sitting President (and would have been contrary to Department of Justice guidelines). Nevertheless, the Mueller Report made clear that “if we had confidence after a thorough investigation of the facts that the President clearly did not obstruct justice, we would so state.”

Given the now public contents of the Mueller Report, the fact Mr. Barr thought it was appropriate to exonerate Mr. Trump of obstruction misleads the public on the substantial evidence of illegality against him. The consequences this act has on the independence of the Attorney General from the President and more generally, the rule of law, are profound. History will not view Mr. Barr’s unilateral exoneration of Mr. Trump favorably. From his unsolicited memo arguing for a narrow view of obstruction by a sitting President to his gross mischaracterizations of the Mueller Report, Mr. Barr has illustrated why lawmakers must rethink the checks and balances of the U.S. Constitution.

The Barr Memo Bargain

William P. Barr first attracted attention from the Trump administration after publishing an unsolicited memo on obstruction of justice. It served as a signal and potential lifeline to Mr. Trump that should he be nominated for the position, he would rule in the President’s favor on any obstruction charge. This hired gun of an Attorney General even admitted in the second sentence of the memo that he was “in the dark on many facts”, but nonetheless thought it was his “duty” to express his views. If there is one thing a lawyer should not do, it’s assume facts not in evidence. Mr. Barr, however, found no issue with making countless assumptions for nineteen pages, droning on about Mr. Mueller’s supposed legal theories and hypothetical facts. It was as if he was responding directly to a phantom brief filed by the special counsel.

When he finally received the Mueller Report after being named Attorney General, Mr. Barr wrote another memo summarizing its findings and making certain conclusions, namely on obstruction. His memo attempted to summarize in four pages a 448 page document, eventually landing on the sweeping decision that Mr. Trump could not be guilty of obstruction because, as the special counsel concluded, he was not guilty of any underlying crime (i.e., conspiracy). Obstruction jurisprudence tells another story, however. Not only is obstruction a separate federal statutory offense, it is well-established in case law that obstruction can be a standalone charge if it’s connected to an established legal proceeding. Otherwise, people who flush illegal drugs down their toilet would never get charged with any crime if federal prosecutors cannot prove possession with intent to distribute. If the law operated in the manner articulated by Mr. Barr, criminals would be incentivized to obstruct justice in any way possible to prevent law enforcement from proving illegal underlying activity in an attempt to avoid any criminal charges whatsoever.

Evidence of Obstruction

Once the Mueller Report was made public, it became readily apparent that there was a wealth of obstruction evidence and a significant gap between this evidence and how Mr. Barr characterized it. Before diving into these disparities, it’s also important to note that Mr. Barr also misrepresented Mr. Trump’s overall assistance throughout the entire investigation by stating that he “fully cooperated.” Mr. Trump refused to answer any questions on obstruction.

In obstruction cases it is crucial to understand a defendant’s state of mind. Did the defendant have a corrupt intent? Did he knowingly and purposely act to thwart, delay, prevent, or otherwise disrupt an investigation? By refusing to answer any questions on this point, it is impossible for the special counsel, Mr. Barr, Congress, or the American people to understand the true nature of Mr. Trump’s intent. With that said, evidence from the Mueller Report can make a circumstantial case that it was in fact corrupt. Chief among them is Mr. Trump’s reaction to hearing that Robert Mueller was named special counsel to the Russian Investigation:

“Oh my God. This is terrible. This is the end of my Presidency. I’m fucked.”

Why would Mr. Trump say such a thing? He was terrified that the special counsel would uncover the multitude of crimes he committed beyond conspiring to rig the 2016 election. Remember, Mr. Trump was implicated as an unindicted co-conspirator of the Michael Cohen hush money payments. The New York Times reported extensively on Mr. Trump’s tax fraud dating back to when his father ran the family business (and they recently won a Pulitzer). From Atlantic City to the Trump University scandals, Mr. Trump has lived a life adjacent to criminals, and often as the criminal himself. With this amount of criminal exposure on the line, there’s sufficient evidence to illustrate a corrupt intent to obstruct the special counsel’s investigation.

The Mueller Report lists ten different instances of obstruction, including some primary examples:

  • Firing of FBI Director James Comey;
  • Efforts to remove Mr. Mueller, the special counsel;
  • Attempts to get then-Attorney General Jeff Sessions to “unrecuse” himself from the Mueller investigation; and
  • Comments and conduct toward Michael Cohen and Paul Manafort

Throughout most of these instances and in countless others, the Mueller Report noted that Trump administration aides refused to carry out instructions that probably would have amounted to obstruction (e.g., the White House counsel refusing to convey to the deputy attorney general that Mr. Mueller “must be removed” and refused to dispute an accurate media report about it). Given their refusals, many of them escaped prosecution, but the special counsel left the question open as to whether Mr. Trump could be indicted simply for instructing them. Mr. Barr barely gave any thought to the President’s culpability here by dismissing the notion almost immediately.

In Mr. Barr, the President found a willing enabler to defend (or “bar”, excuse the pun!) him from an obstruction of justice charge, despite the voluminous evidence that could be used to support such a claim. From Mr. Barr’s perspective, a President’s exercise of his lawful authority can never amount to obstruction, a legal interpretation wholly denied by the Mueller team that stated that the President does not have “blanket constitutional immunity to engage in acts that would corruptly obstruct justice through the exercise of otherwise-valid Article II powers.” When Mr. Barr’s auditioning memo expounded on his legal views regarding obstruction, Mr. Trump was left with an easy choice for replacing Jeff Sessions. Mr. Barr’s pandering to the President and the inherent powers of the office made it clear how he would rule, compromising the independence and autonomy of the most important law enforcement office in the country.

The fact that Mr. Barr was able to serve as this flagrant form of lifeline after applying for the job with an unsolicited memo suggests there is something terribly flawed with the U.S. Constitution. While Congress considers what to do in terms of impeachment proceedings, it also must evaluate the checks and balances within the Executive Branch. Legal protections for special counsels are not enough. Advice and consent from the Senate in confirmation hearings of United States Attorneys is not enough. More power must be placed independent of Executive Branch overreach, reasonably ensuring that another William Barr cannot serve as an enabler to a corrupt President, undermining the rule of law and misleading millions of Americans in the process.

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