Like Robert Mueller, Neal Katyal is widely viewed as an “honest broker” in the Trump Wars, having been engaged to write the regulations under which the Special Counsel was to investigate whether a United States president was elected with collusion of an historic enemy. He now suggests, without admitting that he may have neglected some salient details, that his product is tainted.
But the critical part of the letter is that it now creates a whole new mess. After laying out the scope of the investigation and noting that Mr. Mueller’s report does not offer any legal recommendations, Mr. Barr declares that it therefore “leaves it to the attorney general to decide whether the conduct described in the report constitutes a crime.” He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.
Of course Trump declares he was “EXONERATED,” notwithstanding the explicit language in Barr’s letter that says he was not.
The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
What this means is twofold, that Mueller decided not to reach a conclusion on the issue of obstruction of justice either way, and kicked the can down the road. Whether this reflects Mueller’s conservative approach to his mandate or his decision not to be the guy who made the call is unknown, but what it does reflect is the fact that his mandate did not compel him to do so and he didn’t.
Who was the dope who drafted these regs that allowed the Special Counsel to make the choice not to decide, Neal? Who was the dope who failed to anticipate that the original mandate, to investigate for Russian collusion, would end up facing a secondary offense of obstruction of justice? Would there have been a Special Counsel at all if that was the primary concern, the one upon which the Resistance relied in its certainty that Putin stole the election from Hillary to put his puppet, the vulgar, amoral ignoramus Trump, in office?
Such a conclusion would be momentous in any event. But to do so within 48 hours of receiving the report (which pointedly did not reach that conclusion) should be deeply concerning to every American.
This decision as to whether obstruction of justice occurred took 47 hours and 55 minutes longer than any other similar decision in the history of the Department of Justice. This is a red herring, which is beneath Katyal to toss out to the hungry mob.
But the question is whether Barr, the Attorney General of the United States, its chief prosecutor, should be the person making the call as to whether the raw information set forth in Mueller’s inconclusive report is, at least in his prosecutor brain, a crime. Mueller could have made that conclusion as Special Counsel, and then the argument (because there was going to be an argument no matter what conclusion was reached) would be over whether Mueller was correct.
Had Mueller concluded that obstruction occurred, the Trumpian forces would be demanding the data to decide for themselves. Had Mueller concluded that obstruction did not occur, the Resistance would be doing so. Had Neal Katyal, in writing the regulations under which the Special Counsel was to function, required Mueller to reach conclusions, the decision would not have been left hanging. Or had Neal Katyal foreseen this eventuality, the regs might have provided for the chain of command to reach the conclusions left on the table.
But Katyal didn’t see this coming, and so there was no express requirement that Mueller reach conclusions as to secondary or collateral offenses. And upon his failure to reach conclusions, there was no express path as to who would do so. Barr took it upon himself to do so.
Obviously, Bill Barr is a political appointee. That’s how our government works, and everyone, Katyal included, was aware of how one becomes Attorney General. Yet, he complains that the chief prosecutor of the United States assumed the function left open in his regulations of making the chief prosecutorial decision.
On the facts, Mr. Barr says that the government would need to prove that Mr. Trump acted with “corrupt intent” and there were no such actions. But how would Mr. Barr know? Did he even attempt to interview Mr. Trump about his intentions?
What kind of prosecutor would make a decision about someone’s intent without even trying to talk to him? Particularly in light of Mr. Mueller’s pointed statement that his report does not “exonerate” Mr. Trump. Mr. Mueller didn’t have to say anything like that. He did so for a reason. And that reason may well be that there is troubling evidence in the substantial record that he compiled.
What kind of prosecutor? Pretty much every kind that exists. It’s a fair question as to why Mueller didn’t interview Trump, though it was another can of worms. But Barr’s decision was based on Mueller’s investigation, not a reinvestigation of Mueller’s investigation. And for the record, as if such a thing exists here, prosecutors make decisions about other people’s intent every 12 seconds in America. It’s not merely the way it’s always done, but about as easy-peasy as possible. A person intends the normal consequences of his actions. After that, it’s up to the jury to decide.
Sometimes momentous government action leaves everyone uncertain about the next move. This is not one of those times. Congress now has a clear path of action. It must first demand the release of the Mueller report, so that Americans can see the evidence for themselves. Then, it must call Mr. Barr and Mr. Mueller to testify. Mr. Barr in particular must explain his rationale for reaching the obstruction judgment he made.
The obvious call is that since Barr, the Attorney General of the United States, can’t be trusted to fill in the gap left behind by Katyal’s regulations, the report should go to Congress, notwithstanding those darn regulations that mandated that Congress only receive a summary of Mueller’s conclusions as expeditiously as possible.
Of course, if that happens, the report will be leaked within seconds and the jury of public opinion will parse the Special Counsel’s findings, without conclusions, which will no doubt confirm that every person who cares enough to bust a gut has been right all along. If Bill Barr, for all the awfulness that taints his decisions, can’t fill the unexpected gap Mueller left behind and reach a conclusion as to the secondary offense after the Special Counsel concluded that Trump wasn’t the Manchurian Candidate, certainly Jerry Nadler and the waitress at the diner will be the right ones to do so.