Former federal prosecutor Andrew McCarthy once again delivers a clear-headed and legally meticulous analysis of the current mess. If you can find fault with his reasoning or facts have at it. If not and you prefer to just grouse, IMHO STFU.
I resist cutting and pasting snippets since the analysis ought to be taken whole. It is an impressive and closely reasoned argument.
That said, while McCarthy sticks to the facts and builds hypotheses carefully on the basis of what is actually known, he is left hanging, unable to come up with a good answer, on a central question.
As he writes, the country needs an answer to that question. But not from Barr. From Mueller.
A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case?
But what to make of the recent cloud of smoke being thrown up by the media: that Barr is the one who has explaining to do, that he is not telling the whole story and that the Mueller people are not happy about it?
On the one hand, it is easy to discount the news reports about the dissatisfaction expressed by the Mueller team about what is happening. Articles in the mainstream press based on anonymous sources have not held up well at all.
Yet if McCarthy’s take is well-founded–and I think it is–grousing by Mueller’s staff is to be expected. They did not get their way on the very weak obstruction argument that in the end was what the whole shebang was about.
In June 2018, Barr had submitted an unsolicited 20-page memo to Rosenstein. Citing the legislative history of the obstruction statutes, leading case law, and longstanding Justice Department policy, he contended that Mueller’s apparent theory of obstruction was legally untenable and practically unworkable. Putting the president aside, the theory would subject to possible prosecution any Justice Department supervisor who made a routine personnel decision during a case (say, reassigning a lawyer from one investigation to another) if some prosecutor later suspected an improper motive. Barr further made what should be an incontestable point: Given the damage such a prosecution can do to the nation’s governance, a president should not be prosecuted in the absence of something all reasonable people can agree is a clear, serious violation of law.
Once Barr was confirmed, Mueller had to see the handwriting on the wall: The new AG was not going to approve a dubious obstruction charge. The special counsel thus had a choice: concede that Barr was right on the law, or fight for the controversial theory his staff had pursued — i.e., recommend an obstruction charge and dare the AG to nix it. But Mueller shrank from making the decision, choosing merely to summarize the evidence and leave the prosecutorial judgment to Barr.
In consultation with Rosenstein, Barr found no prosecutable case. Deftly, he reasoned that even if one accepted the questionable premise that a lawful act can lead to an obstruction charge if corruptly motivated (Mueller’s theory), the case would still fail. Corruption, Barr elaborated, would have to be proved beyond a reasonable doubt, and here, where the president had not colluded with Russia and had cooperated with the investigation, it would be impossible to prove he had a corrupt intent to thwart the investigation.
On the other hand to say that leaking by miffed members of team Mueller is understandable is not the same thing as saying it is defensible, ethically or legally. John Solomon argues that it is not.
The job of prosecutors is not, as the Times headline suggested, to pen “damaging” narratives about people they couldn’t indict. And it’s not their job to air those people’s dirty laundry, or that of suspects outside of a grand jury room or a courtroom. . . Prosecution isn’t a game of horseshoes or hand grenades where prosecutors get to score points or inflict damage without indicting the target. In fact, the Founding Fathers built a legal system specifically to avoid the tarring of citizens when there wasn’t enough proof to meet a criminal charge.
And then there is the added fillip of the Times coverage. It is OK to publish information unethically or illegally leaked (though you would expect some mercy for Assange on that count; good luck and bon voyage Julian!)
But it is not even clear that the Times ran the story on the basis of a first hand source but rather on the basis of second-hand hearsay. That’s not legally actionable (n.b., that pesky Assange thing again!) But it is arguably not journalistically sound, especially with all the BS the press has thrown around.
Bonus: Kim Strassel on the hollowness of the Times coverage.