The Barr Gambit

A former federal prosecutor has some thoughts on the Barr Gambit …

A few thoughts on the Barr Gambit, which I think will go down as a singular achievement in the annals of intellectual dishonesty and bad faith legal jujitsu:

1. It is undisputed that the Russian government brazenly interfered in the 2016 election to support Donald Trump. In so doing, the Russians and those acting on their behalf committed a variety of federal crimes including computer hacking and conspiracy to defraud the U.S. Those crimes were committed to benefit (a) Vladimir Putin and the interests of the Russian government; and (b) Donald J. Trump. It is also undisputed that Trump and his campaign joyfully used and weaponized the information the Russians stole against Hillary Clinton. Trump personally trumpeted the Wikileaks disclosures 141 times during the campaign, and his surrogates countless more times. While Mueller’s team apparently “did not establish” (i.e., did not find enough evidence to charge criminally) that Trump personally conspired with the Russian government to commit the underlying crimes, there is no question that he was (along with Putin) the single biggest beneficiary of those criminal efforts.

2. Mueller apparently pulled together significant evidence that the President attempted to obstruct the investigation into these crimes. But to support his decision not to prosecute the President for obstruction of justice, Barr relied in part on Mueller’s conclusion that he could not prove beyond a reasonable doubt that the President was involved in an underlying criminal conspiracy. Therefore, Barr’s reasoning goes, Trump lacked corrupt intent to obstruct because, at least in part, he was not involved in any underlying crime. This argument is both legally wrong (obstruction charges don’t depend on the existence of an underlying crime, just an investigation or proceeding), and it flies in the face of one simple fact: Trump was a prime beneficiary of the undisputed criminal conduct that did occur. He of course had a strong personal interest in seeking to obstruct this investigation for a variety of reasons. If you receive and use stolen money, even if you weren’t involved in the theft, you have a strong interest in thwarting any efforts to investigate the underlying theft. Why? Because you don’t want to lose the right to hold onto your money. Same here. This investigation posed a direct threat to the Presidency. It also posed a direct threat to prying open Trump’s shady business empire. Barr’s argument might hold water if the Russian election interference was intended to help Hillary and Trump’s campaign was not the subject of the investigation. As it stands, the President had a deep personal stake in the outcome of the investigation and it appears he used his executive power to thwart it. That cannot be countenanced.

3. The non-charging decision on obstruction by Mueller cannot be explained as a failure of evidence. On conspiracy or coordination, it appears Mueller made a clear decision not to charge because of a lack of evidence. As too many members of the media seem to get wrong, this was not a “no evidence” situation, but rather a failure to get to the required level of admissible evidence to prove the case beyond a reasonable doubt. And the level of proof had to be something in between probable cause (you can’t get 500 search warrants without it) and proof beyond a reasonable doubt. I have no problem with that decision from a prosecutorial discretion standpoint. There was lots of evidence of an underlying conspiracy, but it was always going to be very difficult to prove the President’s direct involvement with sufficient admissible evidence (classified intercepts from foreign governments won’t do it). And Manafort and Stone holding the line seems to have been the stopped the Mueller team short. Mueller made a decision not to charge conspiracy because of a lack of evidence, so why not obstruction? If it’s a 50-50 call and a pure “jump ball” that’s easy. You decline. If it’s “more likely than not,” the civil standard, you also decline. Even if it’s “clear and convincing” evidence that doesn’t rise to the level of proof beyond a reasonable doubt, you decline the case. So what is going on here? To me, the only answer is that they had a chargeable obstruction case but stopped short of making a decision to charge the President–because he’s the President. It could have been the policy not to indict a sitting President, it could have been the legal and policy arguments around executive authority, or it could have been out of deference to the legislative branch and its impeachment prerogatives. Any way you cut it, I just can’t see Mueller shying away from a tough evidentiary call. If we ever get to see it, I fully expect the actual Mueller report to contain a devastating case against the President for obstruction of justice. This is why we should expect to see Barr, the White House, and the Republicans in Congress fight like hell to keep as much of the report as possible away from the public and House Judiciary. Democrats cannot let this go.

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