Skepticism About Mueller's Decision on Obstruction Grows

Forty-eight hours after William Barr sent his four-page letter to Congress, in which he revealed that the special counsel had punted on one of the two central issues of his investigation, we still don’t know why the special counsel, Robert Mueller, didn’t reach a judgment on whether Donald Trump has obstructed justice.

On Monday, the Wall Street Journal reported that Mueller told Barr three weeks ago that he didn’t intend to come to any conclusions on whether Trump’s actions in office, which included asking the former F.B.I. director James Comey to “go easy” on his former national-security adviser Michael Flynn and eventually firing Comey outright, amounted to criminal obstruction. 

It’s a decision that’s puzzled some former Justice Department officials who say prosecutors at Mueller’s level typically make their own charging conclusions rather than leave them to higher-ups like the attorney general. On Sunday, Barr said there was insufficient evidence Trump obstructed justice by trying to interfere with Mueller’s probe.

Barr’s decision to exonerate Trump on the obstruction issue, when Mueller pointedly didn’t, is being cited by Democrats as they press for the release of Mueller’s entire report. 

Democrats react with skepticism:

“I find this to be very unusual that there was this question left open and presented by the special counsel,” said Tim Purdon, the former United States attorney for North Dakota during the Obama administration. “As U.S. attorney, usually you have the last say. You’re the decider, you decide what to do.”

“But of course,” Purdon added, “these are unusual circumstances.”

Robert Clark Corrente, a former U.S. Attorney for Rhode Island, said he was taken aback by the reference to “both sides of the question.”

“If you’re a prosecutor of any stripe, federal or state, it’s your burden to prove a crime beyond a reasonable doubt,” Corrente said. “It really doesn’t matter that there’s evidence on both sides.”

Six House Democratic committee chairmen have written to Barr to ask for the full Mueller report by April 2.

“Your four-page summary of the Special Counsel’s review is not sufficient for Congress, as a coequal branch of government, to perform (its) critical work,” the lawmakers wrote. “The release of the full report and the underlying evidence and documents is urgently needed by our committees to perform their duties under the Constitution,” the letter said.

Jerrold Nadler of New York said, “[Barr] auditioned for his job by writing a 19-page memorandum giving a very extreme view of obstruction of justice in presidential power and saying basically no president can commit obstruction of justice.”

“They’re just trying to create a new kind of monarchy in the United States and have a president who’s not accountable,” said former Representative Elizabeth Holtzman, a New York Democrat who sat on the House Judiciary Committee that passed articles of impeachment against Mr. Nixon for obstruction of justice and other charges before his resignation in August 1974.

“What we tried to do in the wake of Watergate was control a president who had accrued excessive power,” Ms. Holtzman said. “And these reforms seem to be going by the wayside, and we’re seeing the consequences. It’s really a disastrous situation for our democracy.”

Republicans were undeterred:

“I celebrate this, I salute this, I think it is a very good thing because the possibility of having the president investigated because of his exercise of his core constitutional powers was a very, very bad thing to have out there,” said David B. Rivkin Jr., a former Republican Justice Department official who has written on the topic. “It debilitates the government at all levels.”

I response to accusations that the results erase precedents set after Watergate, some expressed skepticism that the line for what constitutes ‘obstruction of justice’ has necessarily moved. “I don’t think that means that the definition of obstruction has changed,” said Timothy Naftali, a New York University professor and former director of the Nixon presidential library. “What I think we may find is the evidence wasn’t sufficient to take on the huge battle of indicting a president.”

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