an autodidact meets a dilettante…

Jacinta: So we can’t get enough of the wacky world of US federal politics, maybe from a schadenfreudish perspective, since we’re not Americans and have no intention of setting foot in that mad bad sad world…

Canto: Fully of lovely people I should add. Very diverse.

Jacinta: Very, let’s leave it at that. But we’re fascinated that Trump is still trumpeting, and that the nation’s better half, actually more than half, has still not found a way to rid themselves of him. I’m very reluctant to attribute any smarts to Trump, because criminal types, in spite of many movie depictions, are rarely smart enough to avoid getting caught. Yet Trump is still at large. He’s obviously done many things right, re self-preservation, and even self-aggrandisement.

Canto: We think of criminals as dumb because they’ve been caught. That’s why we call them criminals.

Jacinta: Good point. Anyway, the slow train crash that’s US federal politics today may not be the Trump crash. He may well walk away from the wreck unscathed. The number of final scenarios from here seems virtually infinite.

Canto: So let’s jump right in. The Mueller team has produced a report, redacted to the public, but mostly available (with almost entirely unredacted summaries of each of the two volumes, on conspiracy and obstruction respectively), which we have read and which we’ve found to be extremely critical of the administration and Trump himself. We’ll be quoting from the report throughout this fun, multi-post analysis.

Jacinta: But first we want to have a look at the role being played by US Attorney-General William Barr, who’s currently standing between the Mueller Report and its reception and treatment, by Congress, by the US justice system, and by the American public.

Canto: Barr hasn’t been the A-G for long, having taken office on Valentine’s Day of 2019.

Jacinta: A loving day for Billy and Donny. Some background to the appointment. Trump nominated Barr for the position on December 7 2018, a month after the resignation of the previous A-G, Jeff Sessions. Trump, as example F of the Mueller Report’s many examples of possible or probable obstruction of justice relates, had been trying to get Sessions to either ‘unrecuse’ himself (a legal nonsense, according to many) from overseeing the Mueller Report, or to resign, throughout Sessions’ tenure in the position. Barr, who held the position of A-G back in the early nineties, was clearly aware of Trump’s frustration with Sessions and his desire for an A-G who would protect him, support him, be on his team, etc, and had sent, unsolicited, a 19-page memo, available online, which is well worth reading. You don’t have to be a lawyer to recognise the many flaws in Barr’s arguments, you simply need a good sense of logic, decency and fairness.

Barr’s memo begins badly, with the title – Re: Mueller’s ‘obstruction’ theory. The scare quotes are meant to imply that obstruction isn’t really a thing in this case, and possibly for Presidents in general. But the most telling word is ‘theory’, because, as we have seen from the report itself, and no doubt this is a feature of Mueller’s legal career, the Special Counsel doesn’t theorise much, he relies on case law and precedent, which he cites at enormous length, to hammer home his findings.

Canto: Yes, just reading the memo, the word ‘theory’ comes up in the second and third paras. I also note the use of scary words like ‘demand’, ‘threat’, ‘interrogation’ and ‘coerce his submission’, all used in reference to Mueller’s behaviour towards Trump, all piled up in the first couple of paras. It’s no wonder that some have surmised that this memo was intended for an audience of one – especially if that person hasn’t the attention span to read more than a page a month.

Jacinta: Well, Barr quickly moves to legalese, using terms like actus rea (actually actus reus) and mens rea – which mean, respectively, a criminal act, and the intent, or knowledge of guilt. What he writes in these next paragraphs is unexceptionable – he agrees that the President is bound by standard obstruction laws, and that Nixon and Bill Clinton were rightly impeached on obstruction in the form of impairment of evidence. But then he goes on to write:

Enforcing these laws against the President in no way infringes on the President’s plenary [absolute] power over law enforcement because exercising this discretion – such as his complete authority to start or stop a law enforcement proceeding – does not involve commission of any of these inherently wrongful, subversive acts.

Barr Memorandum, June 2018, p2

Canto: Hmmm, I think I see what Barr is trying for here. But first, why isn’t it jaw-dropping to grant absolute power to one person over law enforcement? Only in America, surely. The land of the individual super-hero. But what I think Barr is arguing here is that Trump’s attempt to stop a proceeding – the Mueller enquiry – was perfectly legal due to his plenary power. So, even if Putin’s Russia interfered with the 2016 election ‘in sweeping and systematic fashion’, and did so to substantially advantage Trump, and the Trump campaign knew about and welcomed that interference, it was perfectly legitimate for Trump to shut down an investigation into that interference and the Trump campaign’s response. Based on that view, all attempts to get the enquiry stopped or to change its focus were legitimate. End of story.

Jacinta: You’re getting there. And fortunately we don’t have to rely only on our own brilliant minds to critique this memo, as many lawyers have already done so. But let’s continue to go it alone for a while, and then see what others have to say. Barr admits at the outset that he’s ‘in the dark’ about many facts, yet he’s happy to speculate, claiming that ‘as far as I know’, and ‘seemingly’, this is what Mueller is actually doing – for example ‘proposing an unprecedented expansion of obstruction laws’. Again, we’re not lawyers, but I note that Mueller cites precedent many times in his report. And he doesn’t include in his examples of possible/probable obstruction the multitudinous tweets and speeches in which Trump denigrates the Special Counsel’s investigation as a witch-hunt and the Russian interference as a hoax. In a broad sense, this appears to me to be witness tampering – using the bully pulpit in the manner of dictators of the past, repeating a lie over and over until it becomes true. The witnesses here being the American public. But back to the memo. Barr homes in on USC 1512, subsection c2, which Mueller does indeed use in his report, but c2 seems to me clear-cut about obstruction, and covers many acts committed by Trump which Barr glosses over or doesn’t mention. In fact Barr seems to think that the only possibly obstructive act committed by Trump was the firing of Comey. Here is subsection c:

(c) Whoever corruptly (1) alters, destroys, mutilates or conceals a record, document or other object, or attempts to do so, with the attempt to impair the object’s integrity, or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.

Further, Barr states that, as far as he knows, Mueller isn’t accusing Trump of evidence tampering. But how far does Barr know? This is an assumption, and on the basis of that assumption he accuses Mueller of an over-reach which in any case makes no sense on the basis of a straightforward reading of c2.

Canto: Well according to Barr, c2 shouldn’t be read as standing alone, it should somehow be read in the context of 1512 c as a whole. To me, though, it clearly reads as a necessary addition to c1, which doesn’t deal adequately with all the nefarious ways and means of obstruction. Barr describes the use of c2 as allowing an ‘unbounded interpretation’ of obstruction. But the law surely requires a definition of obstruction that captures the myriad ways that obstruction can occur – myriad but at the same time obvious to any well-reasoning witness.

Jacinta: Interesting – Mueller and Barr are friends of at least 30 years’ standing, which is a worry, and this makes me imagine, and perhaps it isn’t just imagination, that Mueller is writing up his report partly in refutation of Barr’s claims. That’s based on reading just three pages of Barr, but we’re often more miffed by the criticism of friends, and blokes are such competitive bulls.

Canto: Yes but you could be onto something there. Mueller dwells at length on 1512 c2 as the basis for his obstruction analysis, as well as on the three elements that must be fulfilled to show that obstruction has occurred – obstructive act, intent, and connection to an official proceeding – and towards the end of the report (Vol 2 III. Legal defences to the application of obstruction-of-justice statutes to the President), Mueller directly addresses the issue of 1512 c2, not in response to Barr, but in response to Trump’s personal counsel. These remarks summarise the Special Counsel’s position:

In analyzing counsel ‘s statutory arguments, we concluded that the President’s proposed interpretation of Section 1512(c)(2) is contrary to the litigating position of the Department of Justice and is not supported by principles of statutory construction.

Mueller Report Vol 2, p159

Jacinta: Yes I like the report’s succinctness, with the above summary being followed by a great deal of case law, constitutional argument and so forth. Of course we’re not conversant with all the precedents and the possible constitutional nuances, but we note that these arguments – which may well be directed at rebutting Barr – are detailed and cool, lacking the sense of outrage we find in Barr, regarding over-reach and unprecedented interpretations. And they do seem to confirm our amateur understanding that 1512 c2 is intended to cover acts other than the physical destruction of evidence – and those other acts would be an open-ended set.

Canto: Yes, Barr quibbles a lot on the term ‘otherwise’ in 1512 c2, and Mueller responds to that.

Jacinta: But if we move out from the detailed law into the world of basic ethics, we should be able to recognise that Barr’s position is nothing short of appalling. He tries to argue – and he did so in the senate hearing – that it’s not obstruction if the President ‘thinks’ that the proceeding is corrupt, and so wants to shut it down. So, according to Barr, Trump’s endless claims of a witch-hunt are sufficient justification for him to dismiss the Special Counsel! That’s laughable. I mean Trump would say that, wouldn’t he? Not that this is what Trump thinks. He knows full well that he’s a career criminal. It’s what every career criminal would say when brought to justice. Duh.