Barr and Mueller did their duty — Congress can’t shirk its own

For two years, health care, immigration, infrastructure and education reform have taken a back seat, awaiting special counsel Robert Mueller’s advice. Now, however, leading Democrats don’t want to even consider impeachment … or, at least, House Speaker Nancy Pelosi (D-Calif.) and House Judiciary Chairman Jerrold Nadler (D-N.Y.) don’t.

An extraordinary act of bipartisan clemency? Hardly. More like a realistic assessment that Mueller’s report, as delivered, is not what the president’s opposition had been hoping for.

{mosads}The much-awaited Mueller report is a thorough, nuanced document. At critical junctures, however, it is so thoroughly nuanced that it decides nothing, or decides against its own factual underpinnings. For this reason, I joined nearly 500 former Department of Justice (DOJ) colleagues in finding the report to supply evidence of crime. I do this as well, as a former head of the Office of Legal Counsel to emphasize that OLC’s constitutional opinion only delays trial — allowing Congress (the whole people’s jury) to assess whether or not a trial delay will be shortened by impeachment.

Does the Mueller report contain evidence of “high crime”? It is unclear. For example, the report discerns no conspiracy to help the Russians “interfere,” while disclosing abundant collusion in the use of stolen materials that Candidate Trump brazenly traced to the Russians — even though President Trump, in a later meeting in Helsinki with Russian President Vladimir Putin, would deny those were Putin’s fingerprints.

Likewise, the obstruction charge. There would seem to be ample evidence of obstruction but Mueller and Attorney General William Barr have chosen, perhaps unnecessarily for the resolution of this case, to read from different law books.

And there is no easy exit marked “Office of Legal Counsel.” Nothing in the multiple opinions by the OLC on this topic — especially those written in the last 50, Watergate-troubled years, one of which I drafted and signed — would have precluded Mueller from doing what he did: namely, giving a full account of facts that could constitute obstruction, even if a formal criminal charge must constitutionally wait until Trump’s time in the presidency is over.  

Of greater note, nothing in OLC’s reasoning would have precluded Mueller from reporting that the evidence of either collusion or obstruction as amassed presented a prosecutable case, subject — again — only to observing the constitutionally anticipated delay in the actual prosecution.

{mossecondads}The Framers of the Constitution did not want to have the republic governed by a president whose domestic and international capability, influence and concentration would be dimmed by the darkness of alleged criminality.

What is more, those members of Congress who think the president sold out his countrymen and -women surely must recognize that the Constitution gives neither Barr nor Mueller the last word. The Framers wisely wanted the electorally accountable Congress — and not even the fairest prosecutor in all the land — to render the ultimate judgment when a president is accused of serious misbehavior.

President Trump’s time in office will expire. How and when that time concludes is now up to Congress, and it should stop scapegoating Barr and former Deputy Attorney General Rod Rosenstein for simply doing the portion of the evaluation that the DOJ’s regulations and the Constitution expected of them.

The House Judiciary Committee should undertake to complete the Barr-Mueller evaluation, backed up if need be by the power of impeachment. Hearings devoted to libeling one side or the other with baseless contempt motions is unworthy of Congress. Barr and Mueller may disagree over how to apply the obstruction statutes — yet, it leads nowhere to criticize them for responsibly laying out their respective positions.

When Bill Barr succeeded me at OLC in 1989, he made no secret of his aggressively large conception of presidential power. But subject to Mueller giving a better public accounting, the outcome of his report has more to do with what Mueller himself, not Barr, chose not to decide and Mueller’s, not Barr’s, narrow conception of his responsibilities.

Just as a high crime or misdemeanor doesn’t have to be a statutory or even a common-law crime, the wrongfulness of a candidate coordinating with a foreign adversary when the candidate knew or should have known that such activity was deeply treacherous is patently clear.

Mueller might welcome a chance to explain more fully why his theory of obstruction differs from both the attorney general and me and my 500 DOJ friends. But regardless, Barr is correct: When Mueller surprisingly left open the conclusion of his work, the hierarchical structure of the executive branch gave the “baby” to the attorney general.

And, Congress, that howling you hear now sits squarely in your lap. So which will it be — overturn the electoral choice of the people because the level of corruption necessitates it, or resolve that the president’s shortcomings do not justify that somber and regretful action?

Resolving that question without all the histrionic grandstanding calling for Bill Barr’s resignation or the lionizing of Bob Mueller without understanding him — or, perhaps, his own misunderstanding of the meaning and effect of OLC’s well-settled opinions, or the very scope of his job — would be helpful.

If Congress does finish its work fairly and promptly, that would be a fine lesson in democracy and freedom for our Russian “friends.” Indeed, it would be a reminder of what really makes America great.

Douglas Kmiec served as the U.S. ambassador to Malta from 2009 to 2011 and headed the Office of Legal Counsel (OLC) under Presidents Ronald Reagan and George H.W. Bush. 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.