The Washington Post
Attorney General William Barr refused to play it straight with special counsel Robert Muellerâs report. Instead of presenting the report objectively, he substituted his own view of the facts. Instead of adhering to the Office of Legal Counsel (OLC) memo, he made up a new rule: A prosecutor can opine on indictment of a president even if he cannot indict him. Instead of looking at the mound of evidence of obstruction, he denied that there was a basis for bringing a case and went still further in parroting President Donald Trumpâs insistence that he had been cleared. Instead of responding dispassionately that no, there was no evidence of improper surveillance of Trumpâs campaign, he invoked the ominous word âspyingâ and doubled down when asked about it under oath.
Barr has now set a bevvy of traps for himself.
On the spying front, FBI Director Christopher Wray, perhaps the only top Justice Department official not to have sullied his own reputation, repudiated Barrâs conspiracy-mongering. The Post reports:
âFBI Director Christopher A. Wray said Tuesday that he would not call the investigation of Trump campaign advisers in 2016 âspyingâ - distancing himself from language used by President Trump and Attorney General William P. Barr.
â âThatâs not the term I would use,â Wray said in response to a question from Sen. Jeanne Shaheen (D-N.H.) during a congressional hearing about the FBIâs budget. . . .â
âShaheen pressed him further, asking whether he had any evidence that illegal surveillance was conducted on individuals associated with the campaign.
â âI donât think I personally have any evidence of that sort,â Wray said.â
If they can ever haul Barr up to the Hill again, Democrats should press him as to why he made a specious charge.
And speaking of testimony, Barr faces contempt charges unless he capitulates, both by appearing for questioning by counsel and in providing the full Mueller report. Barr, I suspect, will have a hard time explaining under questioning why more than 600 former prosecutors see an obvious case of obstruction. (Some of these prosecutors say they are quite certain a substantial number of attorneys within the Justice Department agree with them, not Barr.)
The biggest error Barr made might have been in postulating that the OLC memo still leaves open the opportunity for prosecutors to opine on indictment, even if they cannot indict. (The argument makes no sense, given the major reasoning behind the OLC memo is that a president cannot have the threat of prosecution hanging over his head.) That argument, however, opens the door to opining on grounds for Trumpâs indictment.
When Mueller finally testifies (Trump seems unserious about blocking, or trying to block, Muellerâs testimony), he will be asked: Given that the attorney general thinks the Justice Department can opine on grounds for indictment, what is your own view? If Mueller feels free to answer in the wake of Barrâs legal gymnastics, Iâm confident that heâll agree with 600 or so former prosecutors.
Barr and Trumpâs problem doesnât end there. If Barr (and Mueller) can offer their views on Trumpâs criminal liability, so can the Southern District of New York prosecutors investigating Trumpâs possible financial wrongdoing. âI think they could,â former prosecutor Mimi Rocah, a signatory to the prosecutorsâ letter, tells me. âI donât know if they will.â Other legal experts, including former prosecutor Joyce White Vance (who also signed the letter) and constitutional lawyer Laurence Tribe, agree. âThey clearly should,â Tribe says. âI see no legal, ethical, or political downside. And these days itâs really rare to encounter a way forward that yields no minuses, but some distinct pluses.â
Moreover, letâs keep in mind that the OLC memo applies to the feds. To the extent the New York attorney general finds wrongdoing, âthey have no limitation,â says Rocah, âalthough (there) will be challenges in court.â
Meanwhile, Trump continues on his rampage of obstruction, now âorderingâ former White House counsel Donald McGahn not to testify. As a private citizen, McGahn has every right to tell his story; if subpoenaed, he has a legal obligation to do so. Trump and Barr cannot plug the leaks in their dam they have created fast enough before others open up. They are knee deep in a legal swamp of their own devising at this point.
In sum, Barrâs hackery bought Trump a breather and gave talking points to Trumpâs ethically hobbled and intellectually dishonest base. But he also opened the door for credible, respected voices to tell the public that its president is a crook. Barrâs own reputation within the Justice Department and in the legal community is in tatters, a fitting legacy for someone who failed to live up to his oath at a critical time for our democracy.