Along with thousands of other avid Mueller-watchers, I may well have led you to believe that the Special Counsel’s Report into Russian meddling, possible collusion and obstruction of justice would represent a telling and final blow against the Trump presidency. Even with the limited amount of information we have to date, it’s clear we were wrong on that front.
From what we can tell from the Attorney General’s brief summary of the still-hidden report, Mueller found insufficient evidence to support further indictments with respect to a conspiracy between Russia and the Trump campaign. For the time being at least, this represents a reprieve for Donald Trump jr., Jared Kushner, Jerome Corsi, Erik Prince, and a host of other Trumpworld figures who were widely expected to face legal consequences as a result of troubling contacts with Russians. Trump’s “no collusion” mantra has undeniably found new resonance.
But this is not to say we have seen anywhere near the end of the Trump Russia story, especially when it comes to obstruction of justice allegations
This brings me to the glaring problem in the highly-selective, self-serving four-page memo summarising the Mueller report released on Friday, penned by Trump’s handpicked Attorney General, William Barr.
It seems eminently reasonable to infer Mueller has determined he has no prosecutorial authority with respect to Trump, and is thus intent on passing on the evidence he has gathered to the only entity that has: The United States Congress.
The issue is somewhat technical, so bear with me.
Justice Department guidelines prohibit the indictment of a sitting President, a standard to which Mueller has closely adhered. As such, on questions surrounding the President’s apparent efforts to impede the inquiry, Mueller has declined to recommend prosecution while at the same time explicitly refusing to exonerate the President. We only know this from a brief mention in the Barr letter, but it seems eminently reasonable to infer Mueller has determined he has no prosecutorial authority with respect to Trump, and is thus intent on passing on the evidence he has gathered to the only entity that has: The United States Congress.
There is rich and ample precedent from which the Special Counsel may have fashioned such a view. Both in the case of Watergate and the Ken Starr investigation into Bill Clinton, independent prosecutors made the same call – laying out a pattern of obstructive presidential conduct without determining themselves whether it rose to the level of criminality. In both cases, Congress got the hint and proceeded to impeach Nixon and Clinton.
This has not happened here, at least not yet. What’s more, unlike his Watergate- and Whitewater-era predecessors, Attorney General Barr has intervened in an apparent effort to preempt, even prevent, Congressional action. A mere 48 hours after receiving a report 22 months in the making, Barr told Congress he has unilaterally granted the President a free pass on obstruction charges, too. He came to this conclusion via a tricky legal argument he rehearsed months ago in an unsolicited memo he submitted to the Justice Department while successfully auditioning for the role; namely, that you cannot prosecute for obstruction when there is no underlying crime. To say this is a controversial view in legal circles is an understatement. Former acting Solicitor-General, Neal Kaytal, is among those who believe Barr has overreached on obstruction of justice and calls his legalistic rationale as “ridiculous”.
Barr may have usurped the role Mueller envisaged for Congress – although we won’t know for sure until we see the full report or the Special Counsel spells out his rationale in hearings over the coming weeks.
“I don’t think it’s the Attorney General’s role … to insert himself in the process,” Kaytal says. “I have no indication Mueller wanted that result, and the result is a scary one. It smells bad, and we need to see the full report to see how bad it is”.