Is The Attorney General Covering Up the Cover-Up?
Robert Mueller’s report reportedly “did not exonerate” the President, but AG William Barr did. Working with Rod Rosenstein, Barr concluded that the President should not be charged with obstruction of justice. Besides the curious inclusion of Rosenstein — my former boss, and an individual who arguably would have co-conspirator criminal exposure if the President were convicted of obstruction — in the decision process, the letter has two features that suggest we need to see much, much more of Mueller’s report. The Washington Post has a good rundown of the many logical and legal flaws in Barr’s letter (which I rehearse below because I wrote this before I read them!)
I want to highlight another troubling detail in Barr’s letter. He states that he and Rosenstein consulted with lawyers at the Office of Legal Counsel. Why? I prosecuted obstruction of justice cases, some of them with tough legal questions on which there were divisions of circuit authority and mysterious Supreme Court dicta. I never called OLC. OLC is not ordinarily involved in questions of statutory interpretation related to criminal prosecutions. They resolve divisions between agencies, give guidance on the scope of executive authority, and serve as constitutional interpreter for the executive branch.
When Barr writes that he consulted OLC, then, he is acknowledging that his decision does not rest on facts and motives, but instead on complex, likely constitutional, claims about the limits of the ability of the President to be prosecuted for obstruction of justice. Maybe he concluded that the obstruction of justice statute does not apply to the President because it does not explicitly mention that office, a theory Barr has floated before (and one OLC has rejected in the past, but the office can change its collective mind). Maybe he concluded, as the President’s lawyers have argued on talk shows and twitter, that official acts of the President cannot be obstruction (a claim that has no basis in the language of the statute and would be a truly Nixonian view of separation of powers).
Whatever these legal theories are, the public — and Congress — need to know them in more detail, so that we can decide for ourselves whether they excuse the President’s conduct. Indeed, if Barr and Rosenstein were resorting to these kinds of arguments, it suggests that the factual case for the President’s guilt, under a more conventional reading of the obstruction statute, is quite strong.
Turning back to the analysis the Post already summarized, I have a bit more detail to add. Barr and Rosenstein argue that the “absence of evidence” that the President conspired with Russian operatives to interfere in U.S. elections is a reason not to charge him with obstruction. That is, to use family-friendly language, some serious nonsense.
Declining to charge obstruction in cases where the government fails to uncover evidence of an underlying offense rewards the obstructer for his success. The whole point of the obstruction, of course, is to deny the government that evidence. If obstruction can succeed not only in preventing the substantive offense, but also in being charged for obstruction itself, who wouldn’t obstruct? In football, pass interference isn’t a penalty if the receiver could not have caught the ball. Imagine that a defender throws a receiver to the ground while the ball is in the air, and the referee rules that there was no interference. “Well, he was on the ground, so obviously he couldn’t have caught it,” referee William Barr would explain.
Barr and Rosenstein suggest that the absence of evidence weakens an inference that President intended to obstruct justice — presumably the claim is that innocent people don’t cover up their innocence. That, too, is six different kinds of nonsense. First of all, Rosenstein was in the room when the President told him to invent a cover story for firing James Comey. He knows better than anybody what the President’s intent was — Rosenstein has said repeatedly the President “used him to rationalize the firing” (and again, this is an overwhelming reason for Rosenstein not to have been involved in this charging decision). Second, of course, the absence of evidence is not evidence of innocence.
Third, the President had several obvious reasons for obstructing the investigation even if he didn’t himself personally conspire with Russian agents, and many of them are obvious because he’s said them on camera. He’s said, for instance, that the investigation was politically motivated, aimed at delegitimating him as President. That would be a powerful reason to want to end it — indeed, perhaps even more so if he was in fact innocent of the charges, as that would tend to strengthen his belief that the only purpose of an investigation would be to damage him. He might also have known Russia attempted to interfere — the Barr letter states Mueller found that Russians offered assistance to the campaign on multiple occasions. He may have though that knowledge of these attempts would itself be quite damaging and delegitimating.
Further, the investigation uncovered a web of lies and criminal financial dealings by close confederates of the President. Some of these the President may have known about, others not. Either way, as his dark threats about Michael Cohen’s family imply, the President knew there were a lot of shady folks in his close personal orbit. Any investigation risked uncovering these or other damaging secrets. He may have feared that Manafort or others conspired with Russian operative without his knowledge (and, indeed, Manafort at a minimum shared inside campaign information with a Russian operative). And that’s only the tip of the iceberg. For instance, as the New York Times reported, the President engaged with his father in a long-running tax minimization scheme that would be criminal tax fraud if the President knew that his acts were unlawful.
Long story short, the possible weakness of the evidence that the President conspired with Russian agents — weakness he himself contributed to through his own acts — could not in any way justify a decision not to prosecute him for obstruction.
