Regarding the Fix . . .

The more one looks at the Barr letter concerning the Mueller report, the more one is convinced that there is something exceedingly fishy going on. Let us count the reasons why:

For one thing, the Barr letter is filled with what William Saletan properly calls “weasel words.” Read the whole thing, as they say, but the conclusion Saletan reaches is striking and accurate:

When we get our hands on Mueller’s report—and ultimately, Mueller’s evidence—we’ll have a fuller picture of what he found. We know from Barr’s letter that in the report, Mueller “sets out evidence on both sides” of the obstruction question—and that Mueller says his report “does not exonerate” Trump. For now, all we have is the letter. And it doesn’t show that Trump is innocent of collusion or obstruction. It shows that collusion and obstruction were defined to exclude what he did.

Renato Mariotti calls shenanigans on the speed with which Barr released his letter:

As a practicing lawyer, it would take me dozens of hours to create a 19-page single-spaced memorandum containing nuanced legal analysis on any subject. I would not do so for free unless I felt very strongly about the issue. Although Barr claims otherwise in his letter, it is hard to escape the conclusion that he prejudged the matter and let his strong feelings about the subject influence his judgment.

To be fair to Barr—and to Rod Rosenstein, who apparently was involved in the decision as well—there have been reports from the Department of Justice stating that Barr and Rosenstein have been aware of Mueller’s findings for the past three weeks, and that because of this advanced knowledge, it was possible for them to reach legal conclusions a mere 48 hours after Mueller delivered his report to Barr and the Department of Justice. But I will repeat what I have written before: Mueller is at least as good a lawyer—and a significantly better investigator—than both Barr and Rosenstein, and yet, according to Barr’s letter, he chose not to make any conclusions regarding the possibility that the president of the United States committed obstruction of justice. Are Barr and Rosenstein so incredibly much better than Mueller that they can do in 48 hours—or, let us be generous; three weeks—that which Mueller could not do, or chose not to do for the twenty-two months during which his investigation was running?

Indeed, we are confronted with a fundamental question when considering this entire issue: Why is Bob Barr involved with the decision to prosecute at all?

Nearly 45 years after Richard Nixon resigned the presidency, there remains no evidence that Nixon had advance knowledge of the Watergate break-in, even as evidence that he was deeply involved in efforts to cover up the crime has only grown. If one accepts Attorney General William Barr’s reasoning in the letter he sent Sunday purporting to exonerate Donald Trump of obstruction of justice, perhaps we should consider a belated exoneration of the disgraced former president as well. But Barr’s reasoning should not be accepted, because it sits squarely at odds with settled law and amounts to an attempt to preempt Congress’ constitutionally assigned role to determine if the president has committed high crimes and misdemeanors.

[. . .]

According to Barr, because Mueller concluded that “the evidence does not establish that the President was involved in an underlying crime related to election interference,” it would be difficult to prove beyond a reasonable doubt to a jury that the president had a “corrupt intent” to interfere with a grand jury or other official proceeding. Barr’s argument thus suggests that if a subject of a criminal investigation avoids indictment for the underlying offense—whether it be insider trading, burglary, or election interference—he should not be charged with criminal liability for efforts to obstruct the investigation of the potential offense, either.

That is simply not the law. Proof of an underlying crime is not an element of an obstruction charge, and individuals are regularly charged with obstruction without facing criminal liability for an underlying offense. To take just one example, Martha Stewart was charged with obstructing an investigation into insider stock trading without facing criminal liability for her trades.

The attorney general’s position is not only flatly wrong; it’s dangerous. If Barr’s view was widely adopted by federal prosecutors, it would provide a truly perverse incentive to engage in obstruction. If wrongdoers knew they were unlikely to be charged with obstruction if prosecutors are unable to obtain sufficient evidence of an underlying crime, they would have every reason to engage in obstruction and witness tampering in an effort to prevent prosecutors from gaining access to underlying inculpatory testimony and other evidence that might lead to such charges.

[. . .]

A final mystery regarding Barr’s opinion regarding the Mueller obstruction investigation is why it was rendered at all. According to the attorney general, the special counsel did not reach a conclusion regarding whether the president should be criminally charged with obstruction of justice but limited his report to an elucidation of the evidence on both sides of the matter.

That makes a great deal of sense when one considers that, as Barr reiterates, there is a longstanding Department of Justice policy against indicting sitting presidents. Rather, the only remedy for criminal conduct by the nation’s chief executive so long as the president remains in office is impeachment by the House and removal by the Senate. Because the president cannot be charged, there is simply no charging decision to be made by the Department of Justice.

Mueller appears to have properly taken that policy into account. Because any opinion on whether Trump should be charged with a crime would be wholly hypothetical, he chose not to express an opinion. That is the same approach taken by Watergate special prosecutor Leon Jaworski, who, in his “road map” memorandum to Congress, transmitted the evidence he had compiled of Nixon’s involvement in an obstruction of justice scheme without reaching any conclusions on the president’s culpability, a matter Jaworski believed was properly assigned to the Congress.

The question, then, is why Barr felt the need to supplement Mueller’s account of the relevant evidence on the obstruction issue—none of which Barr detailed in his letter—with an answer to the entirely hypothetical question of whether the DOJ would seek to charge Trump if it could. One can’t help but question whether Barr’s letter amounts to an attempted usurpation of the constitutionally assigned authority of the House to determine whether the president engaged in an impeachable offense.

We are not yet done detailing the reasons why Barr’s conduct might very well stink to high heaven:

. . . Barr provided a clue to his reasoning, by suggesting that he did not see evidence Trump hampered the Russia probe with “corrupt intent.” As former Acting Solicitor General Neal Katyal has noted, it is hard to understand how Barr, or Mueller, or anyone, could gauge Trump’s intent, because the president has not been interviewed about his intentions. Why not? We know at least one person vigorously opposed to compelling Trump to submit to an interview: Bill Barr, whose 2018 memo declared that Mueller could not legally do so.

[. . .]

. . . As Ken White wrote in the Atlantic, “we don’t know whether Barr concluded that the president didn’t obstruct justice or whether he couldn’t obstruct justice.” But Barr’s lightning-fast judgment certainly points toward the latter possibility. We know that the report does not “exonerate” Trump of obstruction, and that Mueller himself felt it appropriate to leave certain “legal conclusions” to the attorney general. Mueller’s considerable deference to Barr could allow the attorney general to take a step the special counsel never did—interview the president. The fact that Barr chose to issue his judgment without doing so raises the strong possibility that he felt obstruction was simply not worth pursuing because it is constitutionally untenable, an argument that Barr has already endorsed.

There is a second problem with the obstruction analysis in Barr’s summary: Rosenstein’s participation. Remember that Rosenstein wrote the memo that justified Trump’s termination of Comey, on grounds that Trump later revealed to be pretext. The New York Times has reported that Rosenstein believed the “White House used him to rationalize the firing” and deeply regretted his role in the incident. Former Deputy Director Andrew McCabe has written that Rosenstein wrote the memo under duress under orders from Trump. At a minimum, Rosenstein has a massive conflict of interest with regard to these obstruction allegations. And yet he consulted with Barr in deciding that Trump did not engage in “obstructive conduct.” It is bewildering that Barr invited Rosenstein to help him decide whether conduct that Rosenstein helped to justify legally might have been illegal.

Not content with all of this, Barr is also giving the White House first crack at examining the report. As I have written before, I am willing to accept the fact that redactions need to be made regarding sensitive national security material, references to grand jury testimony and information concerning sources and methods. But no one in their right mind would trust this president and his team to fairly and accurately review the Mueller report, and ensure that the integrity of its message is not violated in any way. It appears abundantly clear that William Barr is less the attorney general of the United States. and more the chief legal hack of the Trump administration’s political team.

Of course, the behavior of the attorney general of the United States is not the only reason to be outraged that the fix may very well be in. As this Twitter thread makes clear, the Trump administration and its odious allies are currently involved in lying and gaslighting on a scale that should appall and disgust even those who have gotten used to these sorts of reality-bending insults to human intelligence—the ones that have plagued our lives ever since June 16, 2015, when Donald Trump first announced that he was a candidate for the presidency of the United States. And to be sure, lying and gaslighting are only amplified by instances of remarkable hypocrisy.

To be sure, Jed Shugerman is exaggerating. But not by much. This isn’t much of an exaggeration either, when it comes to discussing the state of affairs. Also, speaking of instances of remarkable hypocrisy, it is amazing that anyone in the Trump administration would think that they are well-positioned to sanctimoniously lecture media outlets about honesty.

I presume, by the way, that the sanctimonious lecturers in question would have us believe that we are not supposed to be at all concerned about this:

Felix Sater, a Russian-born real estate developer who allegedly helped President Donald Trump pursue a Trump Tower project in Moscow, is no stranger to legal battles.

While in his 20s, the now 53-year-old developer spent a year in prison for stabbing a man in the face with a broken margarita glass during a bar fight. He was also recently sued by singer Mariah Carey’s former manager for allegedly hacking into her computers and stealing her personal data while staying as a guest in her home.

Now, a new lawsuit filed in the Southern District of New York by a bank from the Central Asian country of Kazakhstan alleges that Sater helped launder millions of dollars stolen from the bank and funnel them into real estate projects, some of which may have been linked to President Donald Trump.

I am sure that all of this is just perfectly normal, that there is nothing to see here, and that we should go about minding other business.

Finally, in the event that you have forgotten the character and personality of the president of the United States, I give you this:

On Twitter, Mr. Trump has continued his usual drumbeat against the news media, but has cast a wider net by calling all “mainstream” journalists the enemy of the people.

[. . .]

In a closed-door meeting with Senate Republicans at a policy lunch on Tuesday, where he promoted his emboldened administration’s decision to try to strike down the Affordable Care Act, Mr. Trump praised Mr. Barr for releasing such a quick summary of Mr. Mueller’s report.

“I love the A.G. He works fast. I love this guy. You told me I would,” Mr. Trump told the group, according to a person familiar with his remarks, before suggesting that he would not like to see any leaks coming from the meeting. He also shared his reasoning for doubling down on his targets.

“People love it when you attack the press,” he told the group.

We can’t do better than this when it comes to selecting our leadership class?

(Cross-posted here and here.)

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