We should stop trying to make sense of Attorney General William Barr’s legal opinions
We should stop trying to make sense of Attorney General William Barr’s legal opinions
@rgoodlaw has an interesting take on Barr’s prepared remarks before the Senate Judiciary Committee today. 1/35
Goodman believes that Barr’s remarks mean (1) that federal prosecutors must adhere to the guidelines that a sitting president cannot be indicted; 2/35
but (2) that a federal prosecutor must nevertheless reach a conclusion at the end of an investigation that the target has committed a federal offense or not. 3/35
In other words, a federal prosecutor is required by Department policy and practice to SAY
whether the president has committed a crime or not — even though a president cannot be indicted while in office for committing that crime. 4/35
Let us begin by noting that this position, whether it really is Barr’s or not, makes absolutely no sense. 5/35
First, what would the Department do with a federal prosecutor’s determination that a president had committed a federal offense for which he or she could not be indicted? 6/35
The answer is, obviously, ABSOLUTELY NOTHING. The AG gets the prosecutor’s report and says: “Oh, that’s interesting. X has reached the determination that President Y committed a federal offense. I’ll have to remember that.” And then files it away. 7/35
Note that Barr has said on several occasions that the Department is not in the business of simply investigating things to collect evidence. 8/35
Well, by the same token it can’t be the job of the Department to investigate if it doesn’t know what in the world it could do at the end of the day with the investigation’s findings — other than to just can them. 9/35
The consequences of the theory about presidential prosecutions that Goodman believes he can discern in Barr’s remarks today become even more absurd if the prosecutor’s report and findings are going to be made public — as was the case with the Mueller Report. 10/35
The problem with publicly reporting a determination that a president has committed a crime would be that he or she could not then establish innocence by being acquitted at trial. 11/35
This problem is recognized and set out very clearly in the Mueller Report: 12/35
In his prepared remarks Barr simply blows right past this problem. In fact, nothing is more revealing of Barr’s political bias, and his determination to serve as Trump’s private attorney rather than the nation’s attorney general 13/35
than his total failure to recognize the aforementioned problems, as well as his failure to understand and appreciate how Mueller dealt with them. 14/35
Barr felt no need to face these problems only because he felt he could reach the determination that Mueller had NOT found sufficient evidence to establish obstruction of justice. 15/35
Barr never once stops to consider: What if Mueller HAD determined that there was sufficient evidence establishing obstruction? What then? 16/35
Barr doesn’t say, and it is clear he COULDN’T say, because, like Mueller, Barr accepts the DOJ guidelines according to which a sitting president cannot be indicted. 17/35
And this tells us everything we need to know about Barr’s fitness for the office of Attorney General. 18/35
If, as Barr says, a prosecutor has to make a binary decision at the end of the day, then the legal theory under which he is operating must account for BOTH possible outcomes, and Barr’s only accounts for one — when the president is determined NOT to have committed a crime. 19/35
The last thing the country needs is a one-eyed Attorney General, who can only see his way clear to deciding that a president has NOT committed a crime, and goes completely dark if the evidence shows that he DID. 20/35
The contrast with the legal theory that Mueller set forth in the Report is remarkable, for that legal theory does deal effectively with the aforementioned problems. 21/35
(I call it Mueller’s legal theory, though I suspect it was largely the handiwork of Michael Dreeben as well.) 22/35
Mueller’s legal theory avoids the aforementioned problems involved in dealing with a POTUS because, unlike Barr, it does not begin with the assumption that a prosecutor must reach a determination that a crime has been committed or not. 23/35
According to Mueller, that DOJ practice FAILS to hold for one and only one person in the country: the sitting president, when he or she is acting within the power and authority of the Office of President of the United States. 24/35
In the president’s case, and only then, we must turn things upside down, and see if it can be established with sufficient evidence that the president is INNOCENT, rather than GUILTY. 25/35
In short, the essence of the innovative move Mueller made was to set out to PROVE A NEGATIVE.
If the case were in court, the prosecution would be attempting to ACQUIT, rather than CONVICT, thereby turning normal prosecutorial procedure on its head. 26/35
I think it has been overlooked that this is in fact the underlying legal theory in the Report because the issues are different in Vol I (about conspiracy and coordination) and Vol II (about obstruction). 27/35
In Vol I, Mueller was able to present his prosecution and declination decisions in the normal, expected way, because President Trump was never a target of those investigations. This was not true for Vol II. 28/35
Barr, who failed to understand Mueller’s approach (in both volumes), has concluded that Mueller has not found sufficient evidence to show that Trump was GUILTY of obstruction, 29/35
whereas in fact what Mueller has shown is that there was insufficient evidence to determine that he was INNOCENT. 30/35
The approach was innovative, brilliant, and totally successful. And the result was not at all what Barr thought it was, because Mueller found on the way a TON of evidence that Trump could be convicted for obstruction IF HE WEREN’T UNINDICTABLE AS A SITTING PRESIDENT! 31/35
To return now to @rgoodlaw: 32/35
It is not surprising to find legal experts like Goodman trying find a way of interpreting Barr’s prepared remarks in a way that makes sense of them, but I’ve concluded to my own satisfaction that this is simply impossible. 33/35
Because Barr has not thought any of this through successfully, it is not at all surprising that he mischaracterized the Report’s findings.
And it is not at all surprising that Mueller had to “go to paper” and call Barr out on it. 34/35
The only surprising thing is that Barr STILL doesn’t seem to understand what the problem is. 35/35
PS/1 What I have called the Mueller-Dreeben legal theory about prosecutions of sitting presidents does not entail that a sitting president is assumed by prosecutors to be guilty until proven innocent.
PS/2 What happened first was that credible evidence emerged suggesting that members of the Trump campaign might be conspiring with Russians to interfere unlawfully in the election. A counterintelligence investigation was opened on them (but not Trump).
PS3/ At a later date a criminal investigation was opened to determine whether Trump had obstructed justice (first for firing Comey, then for other matters).
PS4/ The investigation of President Trump for obstruction was on all fours with the other prosecutorial investigations, but that does not mean that Mueller ever assumed, or ever proceeded, on the assumption that Trump was guilty. (That would clearly have been unlawful.)
PS5/ The only difference was that Mueller looked at the evidence through a different lens (a reverse lens, one might say) when reporting his findings about obstruction.
PS6/ What Mueller concluded is that he could not “exonerate” Trump, which only meant that he could not establish with sufficient evidence, after having conducted a normal prosecutorial investigation, that he was INNOCENT of obstructing justice.
