Mueller’s unsatisfying report and its endangering summary

Following the landmark decision in Marbury v. Madison confirming judicial review, John Randolph said the opinion was “all wrong, all wrong — but no one can say why or wherein.” A week after the summary of special counsel Robert Mueller’s report, many Americans feel the same intellectual exhaustion.

With the report’s seeming clearance of President Trump and his campaign, there has been some expressed desire by the president and his congressional supporters — most notably, Sen. Lindsey Graham (R-S.C.) — to know where things went “off the rails.” A good question, but one that must await the report’s availability.

{mosads}The initial point of derailment, logically, is former FBI Director James Comey’s unorthodox commentary accompanying his conclusion that Hillary Clinton could be, but would not be, prosecuted. Likewise with Comey’s rush to view Trump’s motivations as sinister in inquiring of Comey’s “loyalty” — hardly an unseemly request for someone seeking to stay in a top job after turnover in the White House.

There is no reason to think the president was asking Comey for faithfulness beyond the law. To the contrary, it was Comey who repeatedly disregarded departmental practice; when he flagrantly signaled he might do so again — by telling Congress in open session that he had launched a counterintelligence investigation against the president and his campaign — the proverbial last straw dropped. Trump conferred with longtime departmental lawyers, including acting Attorney General Rod Rosenstein, and was told Comey warranted being terminated. He was, and the president hoped to get down to work.

Looking at matters from Comey’s angle, Trump was unlike any contestant for the Oval Office in our history. Trump lavished praise upon the nation’s most vocal adversary, Russia. Historians frequently use the shorthand “American exceptionalism”  to describe U.S. willingness to look out for the needs of others, from rebuilding Europe with the Marshall Plan to the global effort to defeat the spread of disease. Bizarrely, for a purveyor of “MAGA” caps, Trump disregarded these fine qualities and, instead, regularly affirmed Vladimir Putin’s criticism of America. In Helsinki, Trump said he trusted Russian intelligence over American intel; in tweets too numerous to count, he praised Putin as a great leader. What explains such behavior? Attorney General Bill Barr’s summary of Mueller’s report leaves that question unanswered.

Barr’s summary indicates Mueller did not find evidence of the Trump campaign “conspiring or coordinating” with the Russians “in its effort to interfere with the election.” The summary suggests the special counsel used “interference” and “influence” interchangeably. Yet, there is a considerable difference. It was President Trump’s objective to influence voters to give him a decisive Electoral College victory; it was Russia’s primary objective to disrupt, to interfere by casting doubt upon the credibility of the outcome, whether it favored Trump or Clinton.

At some level, Trump and Russia had overlapping objectives. Russia can be prosecuted for touching upon the election, including interfering with it — hence, the indictment of about a dozen Russian nationals. (Good luck prosecuting them, unless they are caught and brought to the United States.)

The issue for the special counsel was to determine if Trump, in the pursuit of his lawful objective, employed unlawful Russian means or assets — namely, stolen Democratic National Committee emails — as he sought to influence voters. Trump cannot be prosecuted for wanting to win but, arguably, he can be prosecuted for putting Russian-purloined materials to use.

{mossecondads}Barr writes that “despite multiple offers from Russian affiliated individuals to assist the Trump campaign,” neither Trump nor anyone associated with it conspired or coordinated to engage in such interference. Yet, again, the relevant inquiry was not interference but whether there was unlawful use of illicit Russian means to influence. To fail to see the difference is to engage in a prosecutorial non sequitur. Thus, the matter of collusion seems unresolved.

The matter of obstruction also is unresolved but, unlike the factual matters that must be assessed regarding collusion, the obstruction issue is one of law. Barr’s summary indicates the special counsel could not reach a legal conclusion on obstruction. Barr says that when the special counsel cannot resolve a legal issue, it is left to the attorney general — a plausible conclusion of departmental hierarchy.

Examining the president’s repeated criticism of the special counsel and threats to remove then-Attorney General Jeff Sessions, Barr determined these insufficient for obstruction because of the absence of an underlying crime. This aspect of his reasoning is sound, too.

However, he puts the nation at risk by articulating a radically dangerous conception of executive power that is destructive of our Constitution’s careful balance of power.

Last summer Barr sent a lengthy criticism of Mueller’s obstruction theory to Deputy Attorney General Rosenstein and the head of the Office of Legal Counsel, Steve Engle. Much of his reasoning was unassailable — indeed, praiseworthy. However, he also wrote that Mueller’s “fatally misconceived” obstruction theory would yield “grave consequences far beyond the immediate confines of this case and would do lasting damage to the president and to the administration of law by the executive branch.”

In truth, Barr’s unchecked conception of executive power poses the lasting damage to our nation and constitutional structure.

On one level, his interpretation properly focuses upon the statutory definition of an obstruction offense and how that depends on showing a wrongful effort to alter, destroy or conceal a document or other object of evidence.  

Likewise, Barr is correct that a lawful exercise of executive discretion that does not involve destruction of evidence or similar activity cannot be a crime. In other words, service in the presidency cannot be criminalized, or that would make the exercise of discretionary judgment criminal. 

But Barr goes further — much further. He writes that “the Constitution itself places no limit on the president’s authority to act on matters which concern him or his own conduct. On the contrary, the Constitution’s grant of law enforcement power to the president is plenary. Constitutionally, it is wrong to see the president as simply the highest officer within the executive branch hierarchy. He alone is the executive branch. … He is the sole repository of all executive powers conferred by the Constitution. Thus, the full measure of law enforcement authority is placed in the president’s hand and no limit is placed on the kinds of cases subject to his control and supervision.”

This is an unlimited grant of power that is more than monarchical. It rejects Mueller’s more sound analysis that obstruction in the present context would be acting corruptly, meaning an effort by the president to influence an investigation that affects his interests. This conception of corruption credits the ancient maxim that a man cannot be a judge in his own case. The Department of Justice, as Barr notes but too quickly forgets, is steeped in the notion that it is illegal for an official to touch a case in which he has a personal stake. 

Without collusion or obstruction being resolved, the Mueller report as summarized by Barr is insufficient to reveal what went wrong because it has yet to definitively ascertain whether the president’s actions were wrongful.  

Barr is correct that the ultimate check on presidential abuse and self-interest is at the polling place. But it would be wrong for Congress to default in its oversight responsibility — and, if it does, more than the occupant of the White House should be sent packing.

Douglas W. Kmiec served as the U.S. ambassador to Malta from 2009 to 2011. He is the Caruso Family Chair in Human Rights and professor of constitutional law at Pepperdine University School of Law. Follow him on Twitter @dougkmiec.