[dropcap]W[/dropcap]ASHINGTON — U.S. Attorney General William Barr is facing a firestorm of mostly Democratic criticism over declaring that President Donald Trump did not obstruct the Russia investigation, a move that came after Special Counsel Robert Mueller wrapped up his probe Friday without drawing a conclusion on the thorny question.
Barr announced his decision Sunday in a four-page summary of Mueller’s report which concluded that there was no evidence that Trump or his campaign colluded with the Russians during the 2016 U.S. election.
In the letter to key members of Congress, the attorney general wrote that while the special counsel did not decide one way or another whether Trump obstructed justice, Barr and his deputy, Rod Rosenstein, had determined that Trump’s actions during the investigation did not amount to obstruction.
“Given Mr. Barr’s public record of bias against the Special Counsel’s inquiry, he is not a neutral observer and is not in a position to make objective determinations about the report.”
-Nancy Pelosi/Chuck Schumer
“Given Mr. Barr’s public record of bias against the Special Counsel’s inquiry, he is not a neutral observer and is not in a position to make objective determinations about the report,” Democratic House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer said in a statement over the weekend.
Barr did not disclose what actions the special counsel examined in trying to determine whether Trump obstructed justice, as he has yet to release any of Mueller’s detailed final report.
But he said Mueller looked at “several actions” by Trump that raised questions about whether the president sought to impede the federal investigation of Trump campaign interactions with Russian meddlers. Most of these actions, Barr said, have been publicly reported.
For example, in February 2017, Trump asked then-FBI Director James Comey to stop investigating his ousted national security advisor, Michael Flynn, about Flynn’s private conversations with Russia’s ambassador to Washington, Comey later testified.
Another incident: In May 2017, Trump fired Comey and later acknowledged in an interview with NBC that he had “the Russia thing” in mind when he dismissed Comey.
And in July 2017, after news reports of a 2016 Trump Tower meeting between a group of Russians and Trump’s inner circle, including his son Don Jr., the president dictated a statement falsely claiming that the purpose of the meeting was to discuss legal barriers to the adoption of Russian children.
Trump’s lawyers have admitted he dictated the statement, but the president has denied Comey’s allegations.
In deciding whether Trump’s “actions and intent” amounted to obstruction, the special counsel weighed “evidence on both sides of the question,” Barr wrote in his letter. But in the end, Mueller left the issue unresolved, leaving it to the attorney general to decide whether Trump’s conduct constituted a crime, Barr said.
Barr’s decision has proved controversial in part because of his past criticism of the special counsel for investigating whether Trump obstructed justice. In a 19-page memo to Rosenstein last June, Barr, then a lawyer in private practice, called Mueller’s obstruction theory “fatally misconceived.”
With that in mind, critics say Barr prejudged the issue and acted hastily. Barr’s allies reject the criticism and say that as attorney general, he would have learned about Mueller’s decision weeks ago and started formulating an opinion. Mueller signaled to Barr in a meeting about three weeks ago that he would not offer a definitive conclusion about whether Trump had obstructed justice, according to CNN and The Washington Post.
Call for release of full report
Now, congressional Democrats want to know what led to Mueller’s and Barr’s decisions, and they’re calling for the full report to be released. In a letter to Barr on Monday, the Democratic chairmen of six House committees asked the attorney general to turn over the report by April 2 and start handing over all the evidence the special counsel used to write it.
Investigating obstruction of justice was not part of Mueller’s original mandate when he was appointed May 17, 2017. But the special counsel began probing Trump for obstruction after Comey claimed the president had directed him to drop the Flynn investigation. Trump’s firing of Comey on May 9, 2017, and other actions then became part of the larger obstruction investigation.
Obstruction of justice — a felony under federal law — is any interference with a legal proceeding such as a criminal investigation.To prove an obstruction charge, prosecutors must demonstrate beyond a reasonable doubt that a defendant had “criminal intent” to interfere with an investigation.
But can a president obstruct justice? And can he be indicted for obstruction of justice?These are hotly debated questions among legal experts, but the consensus seems to be that a president can only be impeached by Congress for criminal offenses such as obstruction of justice.
In his 2018 memo to Rosenstein, Barr argued that a president cannot obstruct justice as long as he legitimately exercises his constitutional powers. But in his summary of the Mueller report, Barr wrote that his decision to exonerate Trump was not based on a long-standing Justice Department policy that a sitting president can’t be indicted and criminally prosecuted.
Instead, Barr wrote, he and Rosenstein took note of Mueller’s finding that Trump had not committed a crime in connection with Russia’s election interference and that without an “underlying crime,” it would be difficult to prove Trump’s intent to obstruct justice.
“In cataloging the president’s actions, many of which took place in public view,” Barr wrote, “the (Mueller) report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”
Malcolm defends Barr
John Malcolm, director of legal studies at the conservative Heritage Foundation, defended Barr for applying “normal charging criteria for an obstruction of justice charge” and said he wasn’t surprised by the decision.
“The overwhelming majority of people who engage in attempts to obstruct an ongoing investigation do so because they know they’re guilty of the matter that is under investigation,” said Malcolm, who is a former federal prosecutor and Justice Department official.
“In this case, President Trump and the people involved in his campaign were determined not to be guilty of the matter that was under investigation,” he said. “That makes it a lot less likely that he would attempt to obstruct an investigation that at the end of the day was likely to exonerate him.”
Malcolm dismissed the notion that Mueller chose not to make a “traditional prosecutorial decision” because of the Justice Department policy against indicting a sitting president.
“He could have made a recommendation” but instead chose to lay out the facts, Malcolm said.
Although Barr’s letter says the special counsel discussed the question of obstruction with Justice Department officials, it does not shed light on whether Mueller took into account the Justice Department policy in deciding not to make a recommendation.
William Yeomans, a former Justice Department official now a senior legal fellow for the Alliance for Justice, said it remains unclear whether Barr’s expansive view of executive power played any role in his decision to declare Trump innocent of obstruction.
“It would be great to have a full explanation of exactly what he relied on, and that’s why we need to get the report,” Yeomans said.
“I think what (Mueller) was thinking is that Congress is the only body that is going to be faced with a question whether or not to hold the president accountable for obstruction of justice, and my job should be to get to Congress the information as thorough and well-organized as possible,” Yeomans said.