The fact that Barr has given Mueller permission to testify isn’t even the worst of it for Trump.

The fact that Barr has given Mueller permission to testify isn’t even the worst of it for Trump. 1/25

After all, Barr couldn’t actually prevent Mueller from testifying — not eventually, anyway (see below).

The bigger problem is that 2/25

in his testimony before the Senate Judiciary Committee, Barr said he thought that if Mueller didn’t plan on making a prosecutorial decision about the obstruction issue, he shouldn’t have carried out the investigation in the first place. 3/25

As @rgoodlaw has argued, this commits Barr to the position that a sitting President is not immune from federal prosecutors making a DETERMINATION that the President committed an indictable offense — even though he cannot actually be indicted. 4/25

Barr’s Statement to Senate: A Sitting President is Not Immune from Prosecutor Declaration of Indictable Offense”Mueller may now be able to say on the record whether he believes President Donald Trump committed the crime of obstruction.”

In particular, according to Barr, a special prosecutor who investigates possible obstruction of justice by a sitting president should be committed in advance 5/25

to reaching a determination whether or not the president has obstructed justice, even though he or she cannot be indicted for that obstruction. 6/25

Mueller gives his reasons for rejecting that approach in his report: 7/25

But if we take him at his word, Barr rejected that reasoning and its conclusion. 8/25

As Ryan Goodman has also argued (see the link above), this would appear to leave it open, at least as far as BARR is concerned, for Mueller to reach a determination whether Trump obstructed justice. 9/25

But as virtually every legal expert has concluded, if Mueller WERE allowed to reach a determination about that, he would FIND obstruction (lots of it). 10/25

Goodman has also argued that the way is now open for Mueller to so testify to Congress, but I think the truth falls a little short of that, because in the Introduction to Vol II, Mueller not only accepted the parameters 11/25

of the OLC opinion that a sitting president cannot be indicted; he also says that he (Mueller) thinks it would be unfair to the president if he reached a determination that he had obstructed justice — particularly in a report that is intended to be public (as this one was). 12/25

Still, the problem that Barr’s statement on Tuesday last week presents for Trump is clear enough. 13/25

For the reason I’ve just given, Mueller cannot straightaway testify that in his opinion Trump obstructed justice, but he can point out that BARR has asked him to reach such a determination. 14/25

So what Mueller is in a position to do is write a public letter to Barr before he testifies to Congress, asking Barr to ask TRUMP if HE waives the privilege of not having him (Mueller) reach a determination about whether or not he obstructed justice. 15/25

After all, that privilege is like executive privilege. Both can be waived — by the President (not Barr). 16/25

Of course, Trump, on being asked, will refuse to waive the privilege. And that will greatly embarrass both Barr and Trump, for two reasons. 17/25

First, it will make clear to the public (finally) why Mueller decided he couldn’t reach a determination about obstruction of justice. (It certainly wasn’t because he hadn’t found tons of evidence for it.) 18/25

Second, it will show that Trump doesn’t want Mueller to reach such a determination. 19/25

But why wouldn’t Trump want this? After all, according to Trump, Mueller’s Report was a complete exoneration, including a conclusion of no obstruction! 20/25

The latest news today is that Trump has changed his tune and doesn’t want Mueller to testify. It is not clear that this is an order to Barr, or, if not, whether it will turn into one very shortly. 21/25

But Trump is in a very weak position if he really does want to keep Mueller from testifying — particularly after Mueller finishes his work as special counsel, which he is expected to do this month. 22/25

There is nothing but trouble lying ahead for Trump and Barr in any of this. This only only confirms my view, which I expressed in an earlier thread, that Barr is not “the brightest bulb on the porch.” 23/25

I did not start out with that opinion. Far from it. I took at face value the nearly universal opinion that Barr is a “very smart lawyer” (an opinion that has been endorsed even by the likes of Adam Schiff). 24/25

But I have reached the point where I just can’t see him that way at all. 25/25



The Resistance. Vote Blue: True Blue American. We look forward, they look back. We’re progressive, they’re regressive. @twoodiac

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
Thomas Wood

The Resistance. Vote Blue: True Blue American. We look forward, they look back. We’re progressive, they’re regressive. @twoodiac