Barr overstepped his authority and undermined the integrity of the Mueller investigation

On their own initiative, and with no apparent authority in the regulations, Barr and Deputy Attorney General Rod Rosenstein determined that the evidence that the special counsel provided was not sufficient to establish that President Donald Trump committed an obstruction of justice offense.

In his four-page letter, Barr explained that the special counsel's decision to describe the facts without reaching any legal conclusion left it to the Attorney General to determine whether the President's conduct constituted a crime.

Barr's action, however, appears to be in direct contravention of the letter and spirit of the special counsel regulations -- that is, to have a special counsel who is not a political appointee and who is independent of the Department of Justice make the decision whether to charge a crime.

This independence is especially important, where, as here, the attorney general appears to have had a predetermined point of view on whether Trump's actions could amount to obstruction of justice. (Barr, as a private citizen, wrote a memorandum to Justice Department officials in June 2018, saying that Mueller's obstruction inquiry was "fatally misconceived.")

Mueller's decision that he lacked sufficient evidence to make a criminal charging decision, however, is a decision. There is nothing in the special counsel regulations that would appear to authorize the attorney general to make another decision.

The appropriate course of action would have been for Barr not to have made a determination about whether Trump could or would be prosecuted for obstruction.

Instead, Barr should have transmitted Mueller's full report to Congress for Congress to consider the next step -- whether the evidence that Mueller assembled may be worthy of evaluation in a potential impeachment investigation. Lack of a determination of criminal liability does not resolve the question whether the President's conduct and intentions constituted an impeachable abuse of the powers of his office.

Barr's plan for the Mueller report

On March 29, 2019, Barr indicated in a follow-up letter to Congress that he was preparing to release a redacted version of the Mueller report in the coming weeks.

Specifically, Barr wrote that the Department of Justice, with the assistance of Mueller, were in the process of identifying and redacting: (1) grand jury material subject to Federal Rule of Criminal Procedure 6 (e) that by law cannot be made public; (2) material the intelligence community identifies as potentially compromising sensitive sources and methods; (3) material that could affect other ongoing matters, including those that the special counsel has referred to other department offices; and (4) information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.

While a welcome development, the damage has been done: Barr's March 24 "no obstruction" finding has allowed the President to argue to the American public (albeit falsely) that Mueller, rather than Barr and Rosenstein, concluded that Trump did not commit obstruction of justice. In turn, this has provided the President and his allies with the political basis for declaring a complete victory, for further attacking the integrity of the special counsel investigation, and for laying the groundwork for an attack on congressional inquiries.

What Barr can do to remedy the harm

To help remedy his situation, Barr should go beyond releasing to the public the redacted version of Mueller's report. He should:

1. Issue a press release clearly reiterating that he and Rosenstein determined that the President's conduct was not criminal obstruction of justice and that Mueller did not make such a finding. (This is necessary because of the way that Trump and his allies have mischaracterized Mueller's obstruction of justice findings.)
2. Amend the special counsel regulations to allow specifically the Justice Department to release the full special counsel's report and the underlying documentation to Congress (something that the President and the Justice Department can do unilaterally).
3. Declassify all but the most sensitive classified information included in Mueller's report and the supporting documents (all classified information and documents should be assembled in a classified appendix to send to the House Intelligence Committee).
4. Request the grand jury supervisory judge to release grand jury protected testimony and documents to Congress, with appropriate protections, as was done successfully in the Ken Starr independent counsel investigation.
5. Make available to the House and Senate oversight committees all government witnesses who appeared before the grand jury.
6. As represented in Barr's March 29 letter, decline to invoke executive privilege, consistent with the approach taken by President Ronald Reagan in the Iran-Contra independent counsel investigation and President Richard Nixon in Watergate.

Conclusion

Until the full evidence that led Barr to usurp the prerogatives of the special counsel are made available to Congress and the American public, Congress and the public will not know whether Barr made a mistake in substituting his judgment for Mueller's, acted with political motives or acted for other reasons.

Barr's public testimony before Congress after the special counsel's report is released hopefully will shed light on his decision to make the no-obstruction call.

Let's block ads! (Why?)

from CNN.com - RSS Channel https://ift.tt/2CRNDQP

Bagikan Berita Ini