1. Opinion

Column: The unfortunate politics of the Mueller report

Attorney General William Barr knew exactly what he would say about obstruction both before and after he took his current office. [Washington Post photo by Bonnie Jo Mount]
Attorney General William Barr knew exactly what he would say about obstruction both before and after he took his current office. [Washington Post photo by Bonnie Jo Mount]
Published Mar. 29, 2019

The consequences of playing politics with the rule of law will linger long after Donald Trump's presidency, thanks to Bill Barr.

Private citizen Barr earned his political appointment as attorney general last summer when he sent an unsolicited 19-page memo to Justice Department leaders arguing that special counsel Robert Mueller's investigation of obstruction of justice by Trump was, in Barr's words, "a sideshow" and "grossly irresponsible."

This past weekend, Attorney General Barr delivered on the promise his political appointment portended.

Less than 48 hours after receiving Mueller's report, Barr declared in his official capacity as attorney general that Trump had not committed the crime of obstruction of justice — just as Barr had declared in June 2018 in his personal capacity as a private citizen.

In other words, evidence of obstruction of justice was never going to matter to Barr. He made up his mind categorically before seeing evidence the special counsel gathered, and he rendered an opinion before he had time to evaluate the evidence.

Barr's letter to Congress is reminiscent of Deputy Attorney General Rod Rosenstein's memo two years ago this spring purporting to justify Trump's firing of then FBI Director James Comey. Both documents demonstrate political fealty instead of the independence and evidence-based decisionmaking expected of Justice Department personnel.

The special counsel's report (at least as summarized by Barr) provided unsurprising answers to narrow legal questions of substance: direct evidence that Trump conspired with Russia to influence the 2016 election was not found, and direct evidence that Trump obstructed justice was found.

The broader legal questions now are ones of process rather than substance: what to do next and who should do whatever comes next.

Recall the day after Trump fired Comey in May 2017. Trump met in the Oval Office with Sergey Lavrov, Russia's foreign minister, and Sergey Kislyak, Russia's ambassador to the United States. During that meeting, Trump's specific intent was on display as he recounted how he had "faced great pressure because of Russia" which firing Comey, who had refused to pledge personal loyalty to Trump, relieved.

The exchange during that meeting is part of a pattern of conduct requiring the type of scrutiny only Congress can provide.

Congress, not the special counsel, has the authority and the responsibility to examine whether Trump was financially compromised by Russia years before he became president and, relatedly, whether Trump obstructed justice after he became president to avoid discovery of evidence of his involvement in international money laundering with Russian interests, also before he became president.

Recall the number of criminal charges brought against individuals and entities as a result, directly or indirectly, of the special counsel investigation: 34 individuals and three entities have been indicted on nearly 200 criminal charges. Some individuals have been convicted while other indicted cases remain pending.

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The U.S. Attorney's Offices for the districts in which the pending cases were brought, not the special counsel, have the authority and the responsibility to complete the cases, which necessarily includes continuing to follow the evidence.

The prevailing view in the days following Barr's release of his summary seems to have been based on faulty assumptions: that somehow there would be revelations befitting a Law and Order episode replete with recordings of Putin and Trump plotting against America, and that only a new round of recommended indictments would prove that Trump is financially compromised and committed crimes to cover it up.

Today's entertainment-saturated culture probably is to blame for both.

Reality is not a TV show. Reality requires Congress to exercise its constitutional duty of oversight, federal prosecutors in U.S. Attorney's Offices to follow the evidence wherever it may lead, and the attorney general to cooperate with the former and not forestall the latter. How can we be certain these are correct answers to broad legal process questions we now face?

Recall events from the mid-1970s.

Richard Nixon and John Dean, Nixon's White House counsel, were the last occupants of the executive branch who played politics with the rule of law as recklessly as is being done today, causing long-term damage to our democracy that reverberated for years. However, because Congress fulfilled its constitutional duty and federal prosecutors followed the evidence, the reverberations shook but did not shatter the rule of law and the institutions to which it is entrusted.

Christopher Hunter is a non-resident senior fellow at the Atlantic Council, Scowcroft Center for Strategy and Security. He was a candidate for Congress in 2018. He previously served as a senior trial attorney with the U.S. Department of Justice and a special agent with the FBI.


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