Trump and Barr and their Republican enablers are misrepresenting and lying about the Report
(Note: this is an excerpt from my “Reader’s Guide to the Mueller Report.”)
Trump and Barr and their Republican enablers want you to believe that Vols. I and II of the Report should be read in the following way.
First, look to see if a crime (e.g., a criminal conspiracy) was committed. (Volume 1). No? Then, according to Barr’s constitutional theory, President Trump must not have obstructed justice either. (Volume 2).
According to Barr’s theory, a president can commit a crime if he accepts a bribe, for example, because accepting a bribe does not fall within the powers enumerated by the Constitution for the office of the presidency. But according to Barr’s theory, a president can fire anyone he likes in the executive branch that he wants to, for any reason, because that is a power conferred on him by the Constitution, and in so doing he does not commit a crime, even if in so doing he acts with a corrupt or otherwise improper motive. It follows, then, according to Barr’s theory, that a president does not obstruct justice even if he acts corruptly or otherwise improperly to obstruct an official judicial or quasi-judicial proceeding, as long as his acts fall within the powers conferred on his office by the Constitution.
Obviously, this is not the constitutional theory behind the Report, and that is what can make Barr’s criticisms of the Report to date seem puzzling: in these remarks Barr has been trying to fit the square peg of his extreme view about presidential power into the round hole of the Report.
According to the Report’s constitutional theory, a president is no different from any other person in that he cannot obstruct, influence, or impede any official judicial or quasi-judicial proceeding, or even attempt to do so, without obstructing justice. At any rate, that is true even of a president if he acts with a corrupt or otherwise improper motive, even if his obstructive act(s) are among the powers conferred on the office of the presidency by the Constitution.
The Report does not articulate its constitutional view: it is implicit in its whole approach. Nor does the Report really need to defend its view, since it simply expresses the common sense view, which is held almost universally by constitutional and legal scholars, that no individual is above the law, including the president.
Barr would likely deny that he believes the president is above the law, but what he says or might say by way of denial on this point is irrelevant. If a president can act to obstruct a judicial or quasi-judicial proceeding, even with a corrupt or other improper motive (including protecting himself from investigation, embarrassment, or impeachment) without obstructing justice and thereby committing a crime, he would be above the law. Virtually all constitutional and legal scholars would agree with that; indeed, they must agree with it, otherwise they could not hold the view, which is only common sense, that no individual is above the law, including a president.
Contrary to Barr, nothing in the Constitution suggests that the president is above the law. On the contrary, the framers of the Constitution, who were certainly capable of expressing themselves properly, believed that he was not above the law because the Constitution confers on Congress the power to impeach and remove a president from office for “Treason, Bribery, or other high Crimes and Misdemeanors.”
Significantly, the Constitution seems to confer on Congress alone the power to remove a president from office: it does not, for example, grant the judiciary that power. It is also significant that the Constitution grants Congress the power to impeach and remove a president from office for HIGH crimes and misdemeanors.
What the framers seem to have had in mind is this. The president does have a special place in the constitutional scheme of things. He is the only federal official with a national constituency, and his appointment to that position was a political act by voters. So, the framers seem to have thought, we will make it constitutionally possible to remove him from office, but only for HIGH crimes and misdemeanors. And we will not confer on the judicial branch the power to remove a president from office, because whether a president should be removed from office is a uniquely political decision, just as the question of what constitutes a high crime and misdemeanor is a political judgment, not a judicial one.
Hence the constitutional view (which is the Department of Justice’s view and also Mueller’s view) that a sitting president cannot be indicted for an act that falls within the powers granted to the presidency by the Constitution. Indictment of a president would be a legal act, involving federal prosecutors (who are officers in the executive branch) bringing criminal charges against a sitting president before a court (the judicial branch). But the framers of the Constitution do not seem to have contemplated this, and their text appears to confer the power to remove a president from office on the other overtly political branch of government, the U.S. Congress, alone.
According to the constitutional theory of the Department of Justice (which is also Mueller’s), an act x can be a crime yet not be indictable — though that is true for one and only one person: the president of the United States.
It certainly doesn’t follow from this view that, since the president can’t be indicted for an act x if x falls within the powers of office granted to him by the Constitution, he cannot commit a crime by doing x. Indeed, on this view he certainly can commit a crime in so doing. Indeed, on this view he can commit a HIGH crime and misdemeanor. Whether it is a HIGH crime and misdemeanor will depend on the crime.
Barr’s extreme view of the unitary executive is based on a pretty obvious fallacy. It doesn’t follow from the fact that a president has the power under the Constitution to do x that he has a constitutionally conferred right to do x, regardless of what his motive might have been. Where does the Constitution say that, or even imply it?
If his motive is corrupt — because he acts to protect his own interests, for example, rather than to uphold the laws he has sworn to uphold — then a president has no constitutionally protected right to do x, even if the Constitution gives him the power to do x. (This would be clearer the more damaging the act was to the country.) All that the Constitution seems to say on this point is that if a president acts within his constitutional powers in doing x, he can be removed from office by Congress (and only Congress) if Congress deems that in so acting he has committed a HIGH crime and misdemeanor.
Which brings us to the question: When President Trump acted to obstruct the Russia investigation — particularly when a nexus had been established between the investigation and an official judicial proceeding — was he guilty of a high crime and misdemeanor? According to the Report, that is quintessentially a decision for Congress to make, not the Department of Justice or the judicial branch.
According to the Report, the Department of Justice does have the constitutional authority to investigate whether a crime has occurred, and to gather evidence that might be considered by the House of Representatives in considering whether Trump should be impeached. Its evidence could also be used by federal prosecutors to indict Trump after he leaves office.
According to Mueller, the Department cannot indict a sitting president, because that is not a power that is given to any agency of the government by the Constitution. However, the Department can report that it had gathered a great deal of incriminating evidence in the course of its investigation and, as a result, had failed to exonerate the president.
By invoking an infirm and virtually universally rejected constitutional theory, and by using it to misinterpret the connection that exists between Vols. I and II of the Report, Barr has tried to get us to make several mistakes: To miss the fact that candidate Trump’s approving, collusive response to a hostile foreign government’s interference in the 2016 election is arguably impeachable now, even if it wasn’t criminal; To miss the fact that President Trump’s multiple attempts to obstruct the Russia investigation were eminently impeachable, even if they weren’t necessarily criminal either; To miss the fact that in obstructing the Russia investigation when it had already been linked with official, grand jury proceedings, President Trump obstructed justice; and finally, To miss the fact that the “negative information” catalogued in Vol. I is precisely what provides the basis for the obstruction of justice inquiry in Vol. II.
It is a mistake to separate the inquiries in Volumes I and II in the way Barr wants us to do. It is the connection between the “negative information” in Vol. I and the obstruction of justice inquiry in Vol. II that provides the basic architecture of the Report, and that makes it intelligible and gives it compelling force. That is why I spent so much time in earlier sections of this essay describing that “negative information” — virtually all of which was uncovered as a result of the investigations and was unknown to voters on election day.
The trick now is for Trump, Barr, and their enablers to keep the American voter from seeing and understanding these points and the connections involved in them. Make no mistake: Trump, Barr, and their enablers are deliberate, scheming, unprincipled obscurantists, who are lying about the Report and are dead set on misrepresenting it to the voters.
They must not be allowed to get away with it.