AG Barr’s letter: No conspiracy with Russia. Bigger news: No underlying predicate to even define ‘obstruction’

AG Barr’s letter: No conspiracy with Russia. Bigger news: No underlying predicate to even define ‘obstruction’
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Attorney General William Barr has forwarded a summary of conclusions from the Mueller probe to the Senate and House Judiciary Committees.  His letter with these conclusions, linked here, was forwarded on Sunday, 24 March 2019.

The principal conclusions relate to two topics: whether there was “conspiracy or coordination” with Russians to interfere in the U.S. election in 2016, and whether President Trump obstructed or attempted to obstruct justice in the investigation of that topic.

According to Barr, the Mueller report concludes that a list of identified Russians did try to affect the 2016 election, and committed crimes in doing so.  The Russians have been indicted in U.S. federal court.

As to whether any Americans conspired or coordinated with Russians in this effort, Barr’s letter summarizes the conclusion as follows:

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The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election

The conclusion on obstruction of justice is cagier, and in fact disclaims being a conclusion at all.  This is an important point, and it gets to the heart of what has been wrong with this “investigation” from the very beginning.

Here is the bottom line:

The Special Counsel … did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.

Instead, as Barr’s letter says, Mueller forwarded a group of discussion points about obstruction, leaving it to the attorney general to determine “whether the President’s actions and intent could be viewed as obstruction.”

Says Barr:

Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.

The next paragraph, although a bit dense, contains the central nugget.  It clarifies that there was no way to define and identify an intent to obstruct where there was no underlying crime at issue.

[T]o obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.

That’s where the rubber meets the road.  There has to be a predicate for the legal activity.  The investigation — an investigation is what was at issue in this case — has to be linked to a due-process proceeding in which the potential obstructor has an interest.  Otherwise, how can obstruction itself be defined, much less intent to obstruct?

Barr goes on:

In cataloguing the President’s actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent…

That “nexus” to which Barr refers is what has been missing all along.  This was a hybrid investigation that had no underlying coherence, because its “predicate” wasn’t a predicate in law at all: it was a predicate in intelligence.  It was a suspicion raised by observers who were constrained by no requirements of law to define before investigating, and to look for the elements of a crime, as opposed to just finding information of potential interest.

The latter is what the discipline of intelligence is for.  And there’s nothing wrong in principle with pursuing national security matters on that basis (although treating U.S. citizens, including the president, as targets of an intelligence investigation is a course full of land mines for those citizens’ rights).

But there is no such thing as obstruction of justice in an intelligence inquiry.  To have obstruction of justice, you have to have at least the prospect of a proceeding anchored to a definable crime.

Trump’s opponents will be making much in the coming days of a quote from the Mueller report cited in Barr’s letter.

The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

That statement is unimportant, however, in light of the lack of a “nexus” as laid out by Barr’s letter.  Exoneration or lack thereof only matters if a defined crime is at issue.  No central, underlying crime has ever been defined for the Mueller investigation — and the obstruction of justice angle is a casualty of that deficiency.

Those who have objected from the first that this was a nothingburger and a fishing expedition have been right all along. In theory, the statement about obstruction in relation to the president could also apply to the indictments of Michael Flynn and George Papadopoulos, at the very least.  If there was no underlying crime, their “false statements” should arguably not be considered obstruction of justice.

We can’t dispense with a full accounting of this whole episode, including public release of all the materials relating to it.  Barr or Trump will have to decide how much the information is redacted in such a release; my vote is to redact none of it.  We need to see, for starters, the confidential instructions (the “scope memo”) from August 2017 that went with Mueller’s initial special counsel charter.  There’s an unanswered question whether the scope memo attempted to narrow down the issue of defining obstruction.  If it did, and if it found that obstruction was undefinable because of the issues highlighted by Mueller and Barr in the last 48 hours, the American people are owed one big, honking explanation of what this has all been about for the last 22 months.

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J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.


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