“But for the fact the President is the President, he would be in serious legal jeopardy on obstruction.”
– Preet Bharara
What a week. Attorney General Barr holds a press conference, the redacted Mueller report is released, and Congress calls on Mueller to testify. Let’s dive in!
Hour and a half before the redacted Mueller report was released, Attorney General Bill Barr held a press conference in which he “acted more as a defense attorney for Mr. Trump than as the leader of the Justice Department,” Mark Landler wrote in The New York Times. Many echoed this sentiment, including presidential candidates Senators Kamala Harris and Elizabeth Warren.
The Mueller report
The Mueller report is a 448-page document in two volumes, the first focusing on the question of collusion with the Russian government and the second focusing on obstruction of justice. The Washington Post published the full document, as well as an annotated version. There is also a searchable PDF document available here.
- On collusion: The Special Counsel found that “[i]n some instances, the [Trump] Campaign was receptive to the offer” of Russian assistance. However, “[u]ltimately, the investigation did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.” [Vol. 1, p. 173].
- On obstruction: The Special Counsel cannot clear Trump of obstruction, saying “[i]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” [Vol. 2, p. 2]. The Washington Post described the 10 episodes of possible obstruction of justice described in the report, including firing James Comey and ordering then-White House Counsel Don McGahn to fire Mueller.
- Mueller aimed to punt the obstruction question to Congress: The report states, “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” [Vol. 2, p. 8].
- Open matters: Potential criminal activity that was outside the scope of the Special Counsel’s jurisdiction was referred to other law enforcement authorities. Though largely redacted, there are 14 criminal cases listed as referred to other offices. As NBC News explains, the public only knows of two of these cases – one involving Michael Cohen and the other involving former Obama White House counsel Greg Craig.
Trump’s written responses
Included in Mueller’s report are 23 pages of Mueller’s written questions and Donald Trump’s written responses, reproduced by the Associated Press. As noted by The Hill, Trump claimed not to remember events 37 times in his answers to Mueller’s questions. Mueller’s team was not satisfied with Trump’s written answers, saying that they asked Trump’s legal counsel “again” for an in-person interview on matters of obstruction, but were denied [p. C-1]. The Special Counsel goes on to explain that though compelling Trump’s testimony through a subpoena was considered, it was ultimately decided that the likely court battle would delay the investigation and it was not worth pursuing [p. C-2].
Following Bill Barr’s press conference, House Judiciary Committee Chairman Jerry Nadler and House Intelligence Committee Chairman Adam Schiff each sent a letter to Robert Mueller formally requesting he testify before their respective committees.
House Speaker Nancy Pelosi and Senate Minority Leader Chuck Schumer issued a joint response calling for Mueller to publicly testify “as soon as possible.” In a second statement, the two Democratic leaders criticized Attorney General Bill Barr’s handling of Mueller’s report, saying he “presented a conclusion that the president did not obstruct justice while Mueller’s report appears to undercut that finding.”
Senate Majority Leader Mitch McConnell released a statement thanking Barr for his “diligent work to release as much of the Special Counsel’s report as possible to Congress and to the American people.” House Minority Leader Kevin McCarthy also released a statement, saying: “Nothing we saw today changes the underlying results of the 22-month long Mueller investigation that ultimately found no collusion.”
Democratic House Majority Leader Steny Hoyer said in a CNN interview that “going forward on impeachment is not worthwhile at this point.” He added that it’s up to the American people to “make a judgment” in the 2020 election.
Barr Report v. Mueller Report
Following the release of the report, Bill Barr’s description of Mueller’s findings was contrasted with what the report actually stated. In a post for Just Security, former FBI counterintelligence agent Asha Rangappa argues that “Barr obscured and mischaracterized the bases upon which Mueller declined to reach a prosecutorial decision on whether President Trump committed the crime of obstruction.”
Rangappa continues to explain that unsettled legal questions, such as the Justice Department’s policy not to charge sitting presidents, “constrained [Mueller] from accusing the president in the form of recommended charges.” Finally, she notes that “Mueller makes clear that his findings were intended for independent evaluation by Congress, or by future prosecutors — not by Barr himself.”
Consequences of Mueller’s punt
Writing in The Atlantic, George Washington University Law School lecturer Paul Rosenzweig argues that while the Justice Department’s policy against indicting a sitting president stopped Mueller from bringing charges against Trump, Mueller should have made a call on obstruction of justice. “For in elevating the institution of the president above the rule of law, Mueller has done a disservice to the nation,” he writes.
In an op-ed for The New York Times, the executive director of Citizens for Responsibility and Ethics in Washington, Noah Bookbinder, calls for the House Judiciary Committee to “pick up where Mr. Mueller left off and begin holding proceedings to determine whether Mr. Trump abused the powers of his office.” Bookbinder argues the report provides “egregious evidence of obstruction” and it falls to Congress “to consider whether Mr. Trump violated his constitutional obligations to the American people.”
- A day before the release of the redacted Mueller report, George Papadopoulos wrote an op-ed for The Wall Street Journal agreeing with Bill Barr’s assertion before Congress that “spying” on the Trump campaign occurred. Papadopoulos calls on Barr to investigate three people he accuses of spying on him: Cambridge professor Stefan Halper, Australian diplomat Alexander Downer, and Maltese professor Joseph Mifsud.
- Los Angeles-based financier Imaad Zuberi, who was reportedly subpoenaed by SDNY months ago as part of the investigation into Trump’s inaugural committee, is also under scrutiny in California. The Wall Street Journal reported that Los Angeles investigators have asked Zuberi for records concerning foreign business and tax issues related to his companies.
- As reported by The Washington Post, the House Judiciary Committee opened an investigation into reports that Trump told acting Homeland Security Secretary Kevin McAleenan to break immigration law and then promised to pardon him if he faced legal consequences for following the order.
Adrienne Cobb & the CAFE team
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