Why Barr Can’t Whitewash the Mueller Report
We have a system in place for our government to uncover evidence against a sitting president. And it’s working.
By Neal K. Katyal
Mr. Katyal drafted the special counsel regulations under which Robert Mueller was appointed.
Many who watched Attorney General William Barr’s testimony on Wednesday before the Senate Judiciary Committee, which followed the revelation that the special counsel Robert Mueller had expressed misgivings about Mr. Barr’s characterization of his report, are despairing about the rule of law. I am not among them. I think the system is working, and inching, however slowly, toward justice.
When it comes to investigating a president, the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress. That is where this process is going, and has to go. We are in the fifth inning, and we should celebrate a system in which our own government can uncover so much evidence against a sitting president.
Some commentators have attacked the special counsel regulations as giving the attorney general the power to close a case against the president, as Mr. Barr did with the obstruction of justice investigation into Donald Trump. But the critics’ complaint here is not with the regulations but with the Constitution itself. Article II gives the executive branch control over prosecutions, so there isn’t an easy way to remove the attorney general from the process.
Instead, the idea behind the regulations was to say, “We recognize the constitutional reality that the attorney general controls the prosecution power, so what else can we do?” My colleagues and I (a group that included many career officials at the Justice Department as well as bipartisan leaders in the House and Senate) settled on two things. First, provide a mechanism to enable an independent investigation, and thereby generate public confidence in the outcome of that investigation. Second, design that mechanism so that if the attorney general interferes with the special counsel’s inquiry, that interference would be reported to Congress and ultimately become public.
The underappreciated story right now is that we’ve not only learned that it was Mr. Barr — and pointedly not Mr. Mueller — who decided to clear President Trump of the obstruction charges, but also discovered the reasoning behind Mr. Barr’s decision. The American public and Congress now have the facts and evidence before them. The sunlight the regulations sought is shining.
Mr. Barr tried to spin these facts. He hid Mr. Mueller’s complaints, which were delivered to him in writing more than a month ago, even when Congress asked in a previous hearing about complaints by members of the special counsel's team. And the four-page letter that Mr. Barr issued in March and supposedly described the Mueller report omitted the two key factors driving the special counsel’s decision (which were hard to miss, as they were on the first two pages of the report’s volume about obstruction): First, that he could not indict a sitting president, so it would be unfair to accuse Mr. Trump of crimes even if he were guilty as sin; and second, Mr. Mueller could and would clear a sitting president, but he did not believe the facts cleared the president.
These two items came out because the special counsel regulations allowed for public release of this information (and not, as Mr. Barr testified on Wednesday, because he “overrode” the regulations to give the information to the public). The attorney general was misleading through and through, not just about the investigation, but about the special counsel regulations themselves. . . .
Copyright 2019 Martin P. All World Rights Expressly Reserved (no claim to
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