WHY WAS BARR THE DECIDER? Legal Experts Puzzled By Attorney General’s Obstruction Decision

With the special counsel investigation complete, the four-page summary letter sent by Attorney General William Barr to Congress currently offers the only insight into the Mueller report.

Mueller’s apparent choice to decline to make a charging decision on whether President Trump obstructed justice, and instead outsource that decision to Attorney General William Barr and Deputy Attorney General Rod Rosenstein, has many experienced attorneys puzzled.

Barbara McQuade, a former U.S. attorney who now teaches at the University of Michigan Law School, told TPM in an email that it was “very odd” that Mueller would not reach a conclusion on obstruction, leaving the decision in Barr’s hands instead.

“The whole reason to have a special counsel is to insulate the decision maker from the executive chain of command,” McQuade said. “By making the decision himself, Barr feeds into the cynical narrative that President Trump appointed an AG who would protect him.”

Justin Slaughter, an attorney and partner at Mercury Strategies, echoed McQuade’s assessment.

“The smarter move for Barr and Rosenstein would have been to let a career DOJ official — or even a political — make the decision,” Slaughter said, adding that that would “have raised holy hell from the president.”

Others suggested that Mueller’s decision to punt makes sense, and that Barr’s decision was not completely out of the ordinary.

Alex Whiting, a Harvard Law Professor and former federal prosecutor, told TPM he understood why Mueller “deferred on the obstruction charges.”

“There is no doubt that they raise a number of complicated legal and factual questions, as has been discussed endlessly by commentators during the investigation,” he wrote in an email. “An aggressive prosecutor might be able to make a case here, a more cautious one might hesitate. Since much of it is a judgment call, I can see why Mueller would let that decision be made by others.”

Ronald Weich, a dean of the University of Baltimore Law School and a former assistant attorney general, was less surprised that Barr decided to make a prosecutorial decision on the basis of lack of evidence, rather than use the Justice Department opinion that sitting presidents can’t be indicted to punt on the question.

He compared the move to how a court might decide a legal case on a narrow statutory grounds so it can avoid more complicated constitutional questions.

“Since the facts don’t give rise to a clear case of obstruction,” Weich said, Barr didn’t have to answer the constitutional question of whether the Department can charge a president while he’s in office.

Barr’s letter doesn’t go into much detail in explaining why the prosecutorial decision fell into Barr and Rosenstein’s hands.

It says that after Mueller had thoroughly investigated the facts, the special counsel “considered” whether to evaluate those facts under the Department’s prosecutorial guidelines. However, Mueller “ultimately determined not to make a traditional prosecutorial judgement,” Barr’s letter said.

The charging decision was thus left to the attorney general, Barr said.

“Over the course of the investigation, the Special Counsel’s office engaged in discussions with certain Department officials regarding many of the legal and factual matters at issue in the Special Counsel’s obstruction investigation,” Barr said, adding that he consulted with DOJ officials include at the Office of Legal Counsel in deciding the evidence was “not sufficient” to bring a charge.

Nick Akerman, an attorney at Dorsey and former Watergate prosecutor, told TPM that Barr appeared to have followed the definition of obstruction of justice that he laid out in a memo he wrote as a private citizen in June 2018.

Then, Barr called the obstruction of justice aspect of the Mueller investigation “fatally misconceived,” arguing that Trump acted within his Constitutional powers in firing Jim Comey.

“If you look at the memo Bob prepared before he was made attorney general, he basically took the position that without the underlying crime you couldn’t have obstruction of justice,” Akerman said, referencing an argument that Trump could only be indicted on obstruction if Russia election interference-related charges were brought. 

“He basically imposed his viewpoint on this decision,” Akerman added. 

Akerman’s position echoes that of former acting solicitor general Neal Katyal, who wrote in an op-ed for the New York Times that, “if [Barr] used that legal fiction to let President Trump off the hook, Congress would have to begin an impeachment investigation to vindicate the rule of law.”

Barr’s handling of the issue appears to have opened up a new front in House Dems’ plans to press the Trump Administration over the report.

In a joint statement issued Sunday evening, the chairs of the House Judiciary, Intelligence, and Oversight Committees slammed the decision.

“It is unacceptable that, after Special Counsel Mueller spent 22 months meticulously uncovering this evidence, Attorney General Barr made a decision not to charge the President in under 48 hours,” the statement reads.

In a hastily arranged press conference in New York City on Sunday, House Judiciary Committee chair Jerry Nadler (D-NY) called the decision to outsource charging to Barr “unprecedented.”

Former federal prosecutor and current Cadwallader, Wickersham, & Taft attorney Joseph Moreno told TPM that the ball is now in Congress’s court to “decide what if anything they want to do with this information.”

“Unlike Ken Starr, who effectively worked for Congress, Mueller was looking for evidence that could be used to bring criminal charges,” Moreno wrote in an email to TPM. “Attorney General Barr and Deputy AG Rosenstein weighed in because they felt that somebody had to address the issue of whether there was sufficient evidence to charge President Trump with obstruction.”

McQuade added in her statement to TPM that “Congress could still find that Trump’s conduct amounted to a high crime or misdemeanor for which impeachment is appropriate.”

Nadler already said earlier today that he intends to bring Barr before the House Judiciary Committee to have him testify over the DOJ’s handling of the Mueller report.

“I would in fact wonder if the attorney general pressured the special counsel into not making that finding so he could make the finding,” Nadler said at the Sunday press conference. “I’m not aware of any case where an attorney general made the decision on a prosecution or non-prosecution for obstruction of justice.”