Obstruction of justice is a serious crime. And when it’s the president of the United States himself who is under a cloud of suspicion, then it’s up to Congress, not one of the president’s own appointees, to render judgment. And in order to do that, lawmakers need access to all the facts. Now.
Special counsel Robert Mueller has spent much of the last 22 months investigating whether there is evidence that would implicate President Trump in acts to impede the federal investigation into Russian meddling in the 2016 election. Mueller ended his inquiry with a confidential report delivered Friday, a summary of which Attorney General William Barr forwarded to Congress and released to the public on Sunday afternoon.
Mueller’s bottom line: While he found no evidence that Trump criminally conspired with Russia during the election — initially the main focus of his investigation — he was unable to reach such a definitive conclusion on possible obstruction of justice by the president.
The president can claim a partial political victory, in that the report cleared him of conspiring with the Russians, but it was quite explicitly not a “Total EXONERATION,” as he tweeted Sunday. “While this report does not conclude that the president committed a crime, it also does not exonerate him,” Mueller wrote, according to Barr.
The fact that Mueller was unable to rule out the possibility that the president of the United States may have criminally obstructed justice is no mere side issue, no minor footnote. Obstruction formed part of the last two presidential impeachment processes, and for an important reason: If presidents can sabotage criminal inquiries or shut down investigations, it calls into question the very fabric of the rule of law.
The public doesn’t know exactly what actions Mueller looked at as part of the obstruction probe — Barr’s letter didn’t say — but it’s possible to make some educated guesses based on Trump’s own public actions. The president’s decision to fire former FBI director James Comey, after Comey refused to end an investigation into former national security adviser Michael Flynn, might have been part of the case, along with the possibility the president dangled pardons to witnesses in exchange for their refusal to cooperate with prosecutors.
According to Barr’s summary, the special counsel made no specific recommendation, instead laying out the facts. That didn’t stop Barr, in his summary, from reaching a conclusion, writing in his letter to Congress that the evidence would not be strong enough to take an obstruction of justice charge to court. His stance, based on less than 48 hours’ review of Mueller’s report, felt like a non sequitur, since under current Justice Department guidelines presidents can’t be criminally indicted anyway. They can only be impeached, an inherently political process in which Barr gets no vote and the normal prosecutorial guidelines he cited are irrelevant. Barr’s opinion should be viewed as advisory only.
The truth is that Congress, not the attorney general, determines whether presidential misconduct amounts to a high crime or misdemeanor. It’s for Congress to make the judgments that Mueller didn’t. To do so, lawmakers must see all Mueller’s underlying evidence and analysis on the obstruction question. Whether an ordinary person would be charged with obstruction on the basis of the evidence against Trump is the wrong question: Congress needs to figure out if his actions were impeachable, not whether they were indictable.
Even before the Mueller report’s completion, House Speaker Nancy Pelosi was trying to nudge her party away from impeachment. Such calls may grow, especially now that Mueller has found no conspiracy with Russia. But the only way to know for sure is to learn the rest of what Mueller knows. A person — or a president — can be guilty of obstruction and nothing else.
The House should hear directly from Mueller and Barr, and should get every page of the obstruction-focused sections of Mueller’s report, to determine whether, in its sole judgment, Trump’s actions were acceptable for a US president.