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Yes, Mueller’s Waffling On Obstruction Was An End-Run Around The Attorney General


Democrats are in love with their own indignation. That is clear to anyone who reads headlines. Less obvious is that renowned left- and right-leaning legal experts are fighting among themselves over the Robert Mueller report, with the “no obstruction” camp getting the better of the argument.

Rep. Jerrold Nadler’s recent reason for Mueller wanting to testify privately was that “he envisions himself, correctly, as a man of great rectitude and apolitical and doesn’t want to participate in anything that he might regard as a political spectacle.” To all appearances, this precisely reverses the truth.

Rather, according to Jack Goldsmith, a Harvard Law School professor and senior fellow at the Hoover Institution, in withholding a recommendation on obstruction, Mueller acted as politically as he could under the circumstances. The obstruction analysis in Volume II of the Mueller Report, Goldsmith explains, rests on flimsy legal grounds that Mueller’s team of “famously great” lawyers had to know were inadequate.

So why didn’t they come up with something that clinched indictment, especially since looking at Trump for obstruction was bound up with the origins of the special counsel’s appointment? Here’s where things get interesting.

Mueller Deliberately Sidestepped Authority to Tar Trump

Mueller’s waffling on obstruction, which “surprised” Attorney General William Barr, was, Goldsmith speculates, an end-run around Barr. Two points need to be made here.

One, according to the special counsel regulations, the attorney general is boss. He is the one empowered to decide whether to bring charges and determine next steps in accordance with Justice Department policy.

Two, had Mueller consulted with Barr about his iffy theory, which he was legally obligated to do, Barr could have legitimately quashed it. By avoiding a recommendation, Mueller was able to “make damning insinuations about the criminality of the president’s behavior without taking an ‘investigative or prosecutorial step,’” a move that would have triggered the regulations’ requirement of review.

In other words, Mueller finessed Justice Department oversight in order to get damaging allegations about the president into the public space. Given the political manipulations marking the entire “Russia Hoax,” that Barr was surprised by Mueller’s sleight is no surprise.

But let’s go back to the Dems’ “the republic is burning” rhetoric, newly infused with martyr-like associations with Abraham Lincoln. That rhetoric repeatedly likens Trump’s behavior to Watergate.

Recall that Special Prosecutor Leon Jaworski investigated President Richard Nixon for criminal acts, unimpeded by something called “the clear statement rule.” The Mueller apologists blow up the significance of this fact (along with other apparently similar instances when the rule wasn’t applied) with the aim of disposing of the obstacle the rule puts in their path to bringing charges against Trump of obstruction.

But Mueller’s Workaround Doesn’t Cut It

So what is this rule? The clear statement rule holds, not that it is impossible to indict a sitting president, as it is often portrayed, but that constitutional separation-of-powers principles demand that for a president to have exposure to criminal liability, the statute he is accused of violating must explicitly apply itself the president. Otherwise, it can be used against him only if doing so wouldn’t interfere with his exercise the powers granted him under Article II of the Constitution. The obstruction statute is silent in this respect, but Mueller, according to Goldsmith, misapplied the rule, resulting in his “odd” analysis.

Benjamin Wittes, a senior fellow at the Brookings Institute, and two fellow leftist academics have mounted various attacks on the clear statement rule to neutralize it as an obstacle. They maintain that the rule, originally formulated by the Office of Legal Counsel (OLC) in 1995, is wrong because it misconstrues relevant Supreme Court precedent.

Wittes particulary emphasizes alleged historical exceptions to the rule—for example, that Jaworski probed Nixon’s actions for criminality, including in connection with his supervision of the Watergate investigation, an Article II power. This, he asserts, has produced a competing body of law that equally reflects Justice Department rules, policies, and procedures and can serve as a source of counter precedents to gut the clear statement rule.

Both Goldsmith and Josh Blackman, a law professor at South Texas College of Law who sides with Goldsmith, explain in rebuttal why all that’s irrelevant. If an argument was to be made for overthrowing the rule, they insist, it should’ve been done by Mueller, not after the fact by his apologists. That, of course, didn’t happen.

The Rule Applies, But Mueller Essentially Ignored It

Mueller expressly acknowledged the rule’s applicability. He simply tried to squirm out of it with awkward analogies to private citizens. Even his apologists, Goldsmith notes, in trying to improve upon the report, don’t defend Mueller’s workaround.

Moreover, whatever criticisms can be leveled against the rule, it’s Justice Department policy and as such, under the regulations, applies “in robust form to Trump’s actions.” This wasn’t the case before 1992, when the rule had yet to “fully emerge” via the Supreme Court decision Franklin v. Massachusetts and three years later the OLC opinion following and crystallizing Franklin into the rule that has ever since been established DOJ policy. Consequently, Jaworski would’ve had no reason to consider the issues addressed by the rule.

Additionally, Jaworski was operating under a different set of regulations, which didn’t subordinate him to attorney general scrutiny. As a “free agent,” he wasn’t supervised by the Justice Department or bound by its practices, as was Mueller. This, according to Goldsmith, weakens the precedential status of his actions.

Congress Went AWOL While Mueller Ran Amuck

The Goldsmith/Blackman analysis brings home a number of sobering lessons. First, it underscores Congress’s dereliction. As Goldsmith points out, it is up to Congress to fix the clear statement rule. Our lawmakers must “do the hard work” of figuring out how to craft statutes that hold the chief executive accountable without burdening his Article II prerogatives. Instead, they hold the country and national discourse hostage to their impotence.

Second, leftist partisans and the media have treated Mueller as their “private investigator,” to say nothing of their supreme avenger. But it couldn’t have been plainer from the outset that Mueller was answerable to the attorney general. He didn’t work for Congress.

A non-appointed, unelected bureaucrat would hold the reins over the executive, making it impossible for him to govern.

Indeed, the reason for the regulations being framed as they are, in contrast to the predecessor statute creating an independent counsel, which lapsed in 1999, was precisely to center authority in an official appointed by the president, with the advice and consent of the Senate. Absent this subjugation, a non-appointed, unelected bureaucrat would hold the reins over the executive, making it impossible for him to govern.

What’s more, when regulations’ constitutionality was challenged by some of Mueller’s indictees, the rationale Mueller’s office gave was precisely that the special counsel derived its constitutional legitimacy from the fact that it was subject to the control and supervision of the attorney general. Left-leaning legal commentators made the same argument when testifying before Congress on the constitutionality of legislation to prohibit the president from firing the special counsel.

Both were allaying the fears of decision-makers that Mueller’s seeming runaway authority undermined separation of powers. Where are their voices now that Barr is being relentlessly attacked for holding Mueller to the limits that permitted there to be a position of special counsel in the first place?

Last, Goldsmith deflates the fake intensity of his critics’ fear-mongering:

A lot of my critics’ arguments focus on the supposedly unacceptable implications of my view. Some of Nixon’s bad acts might not have been crimes. Presidents can lie to juries without committing perjury if they think it serves a foreign policy goal. And the like. This consequence neither surprises nor bothers me nearly as much as my critics.

Goldsmith expresses confidence that such basic institutional resources as norms, public embarrassment and criticism, congressional censure and impeachment, and elections, are more than enough to keep presidents in line. To be sure, he claims Trump is “immune” to embarrassment and discountenances some of his behavior. But that doesn’t tempt him to excuse unconstitutional expedients or fictionalize their necessity.

‘Corrupt Intent’ Doesn’t Apply Here, Either

In their analyses, Goldsmith and Blackman give prominence to the motive element necessary to establish the crime of obstruction: the much-discussed “corrupt intent.” Both distinguish their positions from Wittes et al. by emphasizing what commentators like Andrew McCarthy have been saying all along.

The benefit of the doubt on intent goes to the president.

Perhaps Trump had corrupt reasons for firing FBI director James Comey, but it is certainly possible he had valid ones. The latter—for instance, clearing his reputation after Comey refused to publicly announce what he’d told Trump privately about Trump not being under investigation—were integral to Trump’s ability to carry out his core Article II presidential responsibilities.

DOJ memos speak to this very type of situation. They make clear that in the event of the possibility of “mixed motives,” where alleged crimes presenting conflicts with the president’s Article II powers are involved, the benefit of the doubt on intent goes to the president. One wonders why this wasn’t brought out sooner, when Trump foes screamed the firing was strictly unlawful, unleavened by any constructive purpose.

Be that as it may, Goldsmith and Blackman argue that you can’t wipe out the ambiguities of the president’s conduct through naked assertion, as Wittes and others have been attempting to do. Interestingly, in this context, the Dems’ extreme claims of presidential obstruction appear to be more than partisan exaggeration. They were and are a strategic legal maneuver.

[Editor’s note: when first published, this article referred to Jack Goldsmith as Jack Goldstein. We regret the error.]