When William Barr cleared Donald Trump of obstruction of justice on Sunday, the US attorney general held true to a long-held and expansive view of presidential authority – and set himself up for a showdown with Congress.
Barr, a veteran Republican lawyer, oversaw the end of Robert Mueller’s investigation into Russian collusion and possible obstruction of justice by Trump.
On collusion, Mueller said there was no case to be brought, according to Barr’s summary of the special counsel’s final report, which has not been published.
On obstruction, however, the special counsel declined to offer a definitive judgment. “While this report does not conclude that the president committed a crime, it also does not exonerate him,” Mueller wrote.
Barr stepped in and told Congress the president was in the clear, saying there was insufficient evidence to prove that obstruction had occurred. "Barr went where Mueller decided not to go," said David Kris, a former head of the justice department's national security division.
That decision is now the subject of fierce controversy, as Democratic lawmakers focus their ire on Barr in the absence of a finding of criminal conspiracy by Mueller, who spent almost two years investigating Russia’s role in the 2016 election.
Jerrold Nadler, the Democratic chairman of the House of Representatives judiciary committee, has promised to haul Barr in to testify about his declaration that Trump did not obstruct justice.
“His conclusions raise more questions than they answer given the fact that Mueller uncovered evidence that in his own words does not exonerate the president,” he said at a press conference on Sunday.
Barr returned to head up the Department of Justice in February after more than two decades in the private sector. His last stint in government culminated in him serving as attorney general under George HW Bush in the early 1990s.
He was part of a wave of conservative lawyers who sought to bolster the power of the presidency, which had waned relative to Congress in the post-Watergate era.
Lied about contacts
The attorney general’s views on presidential authority were on display in a 2018 memo he wrote about the Mueller investigation before rejoining government. Barr shared it with the justice department and the president’s lawyers.
In the memo he argued forcefully against prosecuting Trump for obstruction in connection with acts authorised by the constitution, as opposed to actions such as destroying documents.
He said that the president, as head of the executive branch, had the right to ask James Comey, the then FBI director, to go easy on Michael Flynn, Trump's former national security adviser who lied about his contacts with the Russian ambassador, and to subsequently fire Comey.
Even if a president terminated an investigation of himself, that would not be obstruction of justice, Barr argued. “There is no legal prohibition – as opposed [to] a political constraint – against the president acting on a matter in which he has a personal stake,” he wrote.
Barr said in his letter on Sunday that Mueller had declined to come to a decision on obstruction and instead had simply laid out “evidence on both sides of the question”.
In the letter, issued 48 hours after the special counsel filed his final report, the attorney general gave his own rationale for clearing the president, a decision jointky reached with Rod Rosenstein, the outgoing deputy attorney general.
Rosenstein was the official who first appointed Mueller after the firing of Comey, and is credited with helping to protect the investigation. He also wrote the memo the president used to justify Comey’s dismissal.
A justice department official said the special counsel’s team had given Barr and Rosenstein an advance briefing on Mueller’s report on March 5th, and informed them it would not include a conclusion on obstruction.
Barr pointed to the absence of an underlying crime of collusion and said it undermined the idea that Trump was engaged in a cover-up of that crime, an argument he had referenced in his 2018 memo.
Outstanding questions
More generally, he wrote that Mueller’s report had not identified any actions by Trump that ultimately constituted “obstructive conduct” that could be proved beyond a reasonable doubt. Congress and the public have had to take Barr’s word for it, with Democrats demanding that the report be released in full.
"It all rises and falls on what's in the Mueller report," said Stephen Vladeck, a professor at the University of Texas School of Law, though he added that it was unsurprising that an attorney general would not accuse the president of a crime. "Any attorney general would not be in any hurry to reach a conclusion in favour of indicting his boss, when the special counsel had not."
Among the outstanding questions is why Mueller did not come to a conclusion himself and whether he intended that Congress decide the matter. This comes even as leading Democrats, such as Nancy Pelosi, the speaker of the House, have backed away from impeachment.
In the past, special prosecutors, operating under a different legal framework, have provided Congress with evidence about presidential conduct. Under justice department policy, the president cannot be indicted while in office.
"Maybe he thought this is really a political question, not one amenable to resolution appropriately within the criminal justice system," said Kris, the former national security official who now works at Culper Partners, the consultancy he co-founded. "We need to see the report", he said. – Copyright The Financial Times Limited 2019
