David A. Graham: Barr misled the public—and it worked

Yet Barr’s decision should have come as little surprise. Last June, well before his appointment as attorney general, Barr sent an unsolicited memorandum to the Justice Department arguing that Mueller’s obstruction investigation was “fatally misconceived.” He argued that a president could not commit obstruction by exercising his constitutional powers, such as his sole authority to remove the FBI director, or even by terminating a criminal prosecution. To allow Mueller to proceed, Barr argued, “would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.” Barr repeated that view today: “The president does not have to sit there constitutionally and allow it to run its course,” he told senators. “The president could terminate the proceeding, and it would not be a corrupt intent, because he was being falsely accused.”

Yesterday’s hearings began to make clear that Barr thought Mueller should not have even investigated Trump for obstruction. As his report indicated, Mueller believed himself bound by a Clinton Justice Department’s 2000 ruling that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” But if the Justice Department cannot indict a sitting president, as Barr observed, Mueller should not have continued a probe that could have no fruitful end.

Barr, however, misunderstands Mueller. Mueller looked into 10 episodes, almost all of which did not involve normal obstruction such as witness intimidation or evidence tampering. Instead, Trump’s actions, such as firing James Comey, his order to remove Mueller (thankfully ignored), or another command to shut down the special counsel’s investigation (ditto), could have represented the president’s good-faith exercise of his constitutional duty to “take care that the laws be faithfully executed.”

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Mueller could not find the crucial element of obstruction, which is that the president held a “corrupt” mental state to interfere with a legitimate legal proceeding. This is a delicate judgment, because some acts that appear legal can become obstruction, depending on the motive. Sending money to a witness’s family, for example, does not violate any law, unless a mob boss does it to buy the witness’s silence. Mueller could not reach a judgment that Trump had that corrupt motive without interviewing Trump directly. Here, the president’s lawyers outfoxed Mueller by refusing to make Trump available for live testimony and by barring any written questions on obstruction.

But critics wrongly challenge Barr’s and Mueller’s declination to prosecute. Instead, they should welcome it. Their decisions return the duty to curb presidential abuses of power to its constitutional seat—Congress. Mueller makes clear that he “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available,” even though he could not prosecute a sitting president. Why? The reason Justice does not prosecute sitting presidents, Mueller argues, is so as not to “potentially preempt constitutional processes for addressing presidential misconduct.” The only mechanism that the Framers established to remedy presidential abuse of power remains impeachment.