Understanding the disagreement between Barr and Mueller
The most interesting new disclosure to come out of Attorney General William Barr’s press conference on the Mueller report was about obstruction of justice.
As I pointed out in a Fox News column this morning, the obstruction issue was one of the main reasons why the media-Democrat complex’s caterwauling about Barr’s unremarkable decision to hold a press conference was ludicrous. Special Counsel Mueller declined to render a prosecutorial judgment on whether obstruction charges should be brought against the president. Since it is the attorney general who made the judgment, for that reason alone it was worth hearing from him this morning.
The attorney general stated that the special counsel evaluated ten incidents with an eye toward whether they amounted to an obstruction offense. Barr elaborated that he and Deputy Attorney General Rod Rosenstein disagreed with Mueller on whether these incidents even could have amounted to obstruction as a matter of law.
It is important to grasp what that means, and what it doesn’t, because I’ve heard some inaccurate commentary. Barr was not saying that Mueller found one or more of these incidents to constitute obstruction; Mueller was saying that the incidents involved actions that could theoretically have amounted to obstruction.
A concrete example may make this easier to grasp: the firing of FBI director James Comey. Before a prosecutor considered evidence regarding that incident, there would be a preliminary question: Could the president’s dismissal of an FBI director amount to an obstruction offense as a matter of law? If prosecutors were to decide that, even if the evidence showed corrupt intent on the part of the president, a president’s firing of the FBI director cannot constitutionally amount to an obstruction crime, then the prosecutors would not bother to investigate and make an assessment of the evidence.
What Barr is saying is that he and Mueller did not agree, with respect to all ten incidents, on whether the incident could legally amount to obstruction. What the attorney general therefore did was assume, for argument’s sake, that Mueller was correct on the law (i.e., that the incident could theoretically amount to obstruction), and then move on to the second phase of the analysis: Assuming this could be an obstruction offense as a matter of law, could we prove obstruction as a matter of fact? This requires an assessment of whether the evidence of each element of an obstruction offense – most significantly, corrupt intent – could be proved beyond a reasonable doubt.
That is why Barr laid out the facts that the president could have shut down the investigation but did not; that he could have asserted executive privilege to withhold information from the investigation, but instead made numerous witnesses and well over a million documents available to the special counsel; and that – reportedly according to Mueller – the president sincerely felt frustrated that the investigation was unfairly undermining his presidency. The point is that these facts so cut against the idea of corruptly impeding an investigation that it is inconceivable the prosecutor could prove an obstruction case beyond a reasonable doubt.
A final thought on this. The problem we have when a prosecutor makes a decision that implicates politics is that an unreal standard is imposed. For a prosecutor, either there is enough evidence of a crime or there is not. There is no gray area in between. But in reality, there is more gray area than anything else. The fact that no crime is found does not mean the underlying conduct merits our endorsement. It is common sense that we can conclude the president did not handle each of the ten incidents in a way we find admirable, and at the same time agree that the president’s conduct was felonious.
Common sense is in short supply, though.