Obstruction of justice? The damage runs much deeper than that.
BY NOW, MOST Americans will have read some or all of Special Counsel Robert Mueller’s Report, and as much commentary. Is the president guilty of a crime? If so, which one? And how should Congress respond?
But Mueller’s report is much more than an assessment of this president’s criminal culpability. It richly documents how an individual elected to this nation’s highest office can abuse official power and, if read carefully, provides a roadmap for renewing our democracy.
By design, Mueller’s investigation — limited in scope from the start — was always going to be just one step toward restoring faith in the constitutional system. Thanks to the Mueller, we now have ample evidence that the president obstructed justice.
In my view, the most corrosive legal crisis here grows out of the attorney general’s interpretation of the Constitution and our existing laws — a view that has shaped his decision to end DOJ’s involvement in any further investigation of the president.
President Trump had been taking a victory lap for weeks, claiming that the not-yet-released Mueller report completely cleared him of any wrongdoing. Those claims were amplified by Attorney General William Barr’s selective disclosure and, frankly, biased discussion of the Mueller report’s contents.
But with the publication of the lightly redacted report Thursday, we learned that Mueller’s findings were much more critical of Trump and his campaign than Barr suggested. In fact, Mueller’s team painstakingly memorialized “substantial evidence” that shows the extent to which the president tried to mislead or otherwise confuse Mueller’s investigation.
The special counsel “found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations.” Trump tried to throw investigators off the right track by sowing disinformation, lying outright in public about his behavior, swaying the testimony of others through “discouragement of cooperation and suggestions of possible future pardons,” and firing or trying to fire people with the power to influence ongoing investigations.
BARR BELIEVES THAT a president can’t be guilty of obstruction unless he’s also guilty of an underlying crime. It’s a very clever move that guts most of obstruction law. It also aligns with Barr’s disturbing view of presidential power.
Barr was hand-picked by President Trump as AG because he takes an expansive view of the powers of the executive branch and had already criticized the Mueller investigation. This theory, called “the unitary executive” in academic circles, is based on a controversial interpretation of Article Two of the Constitution — a short list of powers and duties which define the office of the president.
Since the country’s founding, the limitations of executive power have been vigorously debated. Some people, including Barr and other members of the conservative Federalist Society, have argued that Article Two allows a president to exert maximum control over all aspects of the executive branch.
The problem with this strident view of the presidency is that it ignores other provisions of the Constitution, including the requirement that a president “take care that the laws be faithfully executed.” It also ignores the views of members of the founding generation who worried about reproducing the abusive behavior of monarchs.
Defenders of the unitary executive theory have some valiant notions about how virtually unchecked executive power can keep America safe and agencies on a tight leash. But right now, the most aggressive view of presidential power is being used to give cover to acts that would be criminal if committed by any other American.
Last June, Barr called attention to himself when he assailed Mueller’s investigation in an unsolicited letter to DOJ, claiming that the agency should not be allowed to investigate a president, much less charge him with a crime, if he exercises any powers the Constitution gives him.
That letter no doubt put him on Trump’s radar as a man perfectly suited to take over the AG role and ostensibly serve as the president’s personal counsel. Since his appointment, Barr has done just that. He has adopted an exceedingly narrow view of obstruction of justice, one that shelters the president unless his actions “in fact deprived the Special Counsel of documents and witnesses necessary to complete his investigation.” He also argues that a president can’t act corruptly “unless the President and his campaign were actually guilty of illegal collusion.”
To Barr, a president could never obstruct justice unless he commits an underlying offense, such as bribery or lying under oath.
This narrow interpretation of the law allowed Barr to embrace the evidence in a way that has been most generous to Trump. According to Barr’s press conference spin before the report was released, Trump’s behavior throughout the investigation was merely an expression of frustration over the political impact of the investigation. He did nothing that actually hindered the Mueller team’s work.
If we allow Barr’s definition of obstruction — and conception of a president’s relationship to the rule of law — to stand unchallenged, we will set a dangerous precedent. This president and all future presidents will have the power to do nearly anything to frustrate the enforcement of laws simply because he or she is “chief executive,” so long as the actions stop just short of a quid-pro-quo or an obvious crime. Under Barr’s approach:
A president could dangle pardons in front of witnesses who might testify to crimes or adversely affect his family’s financial interests.
A president could demand personal loyalty rather than obedience to the rule of law.
A president could fire or threaten to fire subordinate officers to protect himself or loyalists.
A president could sharply direct the enforcement of the laws to favor supporters and family members or hurt his political adversaries without any legal accountability.
That is precisely the behavior we’ve witnessed over the past two years.
IF YOU’RE FRUSTRATED with the failure of Mueller’s investigation to bring closure to the events of 2016, know that Mueller could not indict the president regardless of what he found because he is restricted by a Department of Justice policy barring indictment of a sitting president. This is due to a serious “structural anomaly” that would arise if a subordinate officer prosecutes the president, who is the constitution’s highest-ranking law enforcement officer.
Put simply, Mueller reports to Barr, whose views on the meaning of obstruction of justice and the scope of presidential power are fundamentally different.
Hamstrung by his lack of prosecutorial power and Barr’s protective stance, Mueller had his team survey the evidence in great detail in anticipation that other prosecutors might choose to indict Trump after he leaves office.
Congress could also use the results of the investigation to impeach the president or initiate other inquiries. (It’s worth remembering that Congress isn’t bound by the AG’s definition of obstruction of justice, what constitutes an impeachable offense, or even whether a president’s actions have violated his obligation to faithfully administer the nation’s laws.)
At this point, Congress will have to make some hard strategic decisions: initiate impeachment proceedings with little assurance that the Senate will convict, or launch other more discrete processes to probe AG Barr’s troubling theory of the presidency. Publicly exploring that theory is vital, for this president may yet take actions that undermine the rule of law, while trying to hide behind the shield that his AG has constructed.
With the release of Mueller’s report, we will need to reckon with the fact that our democracy is deeply vulnerable to foreign meddling and 21st century attacks. Through social media, Russia was able to influence how we think about issues and candidates, eroding the very mechanism of representative government.
Mueller’s report doesn’t make a robust accounting of the national security concerns that so alarmed counterintelligence experts, nor does it try to repair the damage by a presidency that seems so open to manipulation by foreign operatives. Barr’s effort to whitewash what happened by parroting the president’s own political rhetoric — “no collusion” — minimizes those breaches. A review of past and continuing national security threats will have to come from outside of a Barr-led DOJ.
If that doesn’t happen, American democracy will remain at risk.
As citizens of a democracy, we should be asking why Russian operatives thought Trump and his associates would be so receptive to their nefarious plans, and whether any of those conditions persist. Has the American political system become hopelessly vulnerable to foreign interests? If change in policy can reduce foreign meddling in our democratic system, then we must demand an investigation into the extent of this breach at every level. And if the problem lies primarily with a president who has failed to live up to his obligation to defend the Constitution, that, too, is something that the people are entitled to know before the next election since that may be the only viable remedy.
The good news is that Barr’s theory of the presidency won’t be the last word. How the branches of our government respond to the Mueller report will either reassure us that America’s laws and the Constitution work for all of us, or will confirm the corrosive sense that presidents are above the law.
Robert L. Tsai is Professor of Law at American University. His new book, Practical Equality: Forging Justice in a Divided Nation (W.W. Norton 2019) is now in bookstores.