Are we a nation of laws — or an empire?
It's too soon to tell for sure, but a couple of events this week may turn out to have been turning points in the Trump era. First, Rep. Justin Amash of Michigan, a conservative Republican held a town hall meeting in his district to explain to his constituents why he has decided the president should be impeached. He was surprisingly well received. We learned that even some conservatives appreciate someone who has the courage to buck the party leadership on an issue of principle. Perhaps there's a lesson in that for Democrats.
The other event was the first comment anyone has heard from the sphinx-like special counsel Robert Mueller. More than few reporters and pundits called it a "game-changer," if only because Mueller's appearance proved that personal testimony is much more effective at telling a story than expecting people to read a 400-page report. If Mueller didn't say anything on Wednesday that he hadn't already said in the report, what he said was received very differently.
Some of that was understandable, since Attorney General William Barr's interpretation of the report was highly misleading and he has repeatedly put himself in front of the cameras to muddy the waters ever since the report was turned over. Barr even raced to a TV studio while on vacation in Alaska to respond to Mueller's comments, clearly intending to get in the final word.
As Salon's Amanda Marcotte observed, the right-wing punditocracy (and Donald Trump) are very well aware of what Mueller said, and what he meant. They reacted with the vitriolic hysteria one would expect. The reason is obvious. They know that in his restrained way, Mueller made one thing very clear on Wednesday: His report was intended to be taken up by the Congress as an impeachment referral.
But Mueller's statement on Wednesday, summing up his investigation with a focus on his reasons for not charging Trump with a crime — despite all the evidence of criminal behavior documented in Volume II of his report — showed once again that Mueller and Barr have very different points of view about the obligations of a special counsel and the responsibilities of the Department of Justice. We now know for sure that Mueller does not agree with Barr's decision to declare that Trump did not obstruct justice.
Even Fox News understood what they had just seen. Lead news anchor Bret Baier said this right after the statement:
This was not, as the president says time and time again, "no collusion, no obstruction. It was much more nuanced than that. ... [Mueller] said specifically if they had found that the president did not commit a crime on obstruction, they would have said that, and then went into specific details about the DOJ policy and why they couldn’t move forward with anything else than their decision.
Mueller had certainly made his point clearly enough in his appearance at the Justice Department:
First, the [Office of Legal Counsel] opinion explicitly permits the investigation of a sitting president, because it is important to preserve evidence while memories are fresh and documents available. Among other things, that evidence could be used if there were co-conspirators who could be charged now.
And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting president of wrongdoing. And beyond department policy, we were guided by principles of fairness. It would be unfair to potentially — it would be unfair to potentially accuse somebody of a crime when there can be no court resolution of the actual charge.
That other process the Constitution requires is, of course, impeachment.
Contrary to Barr's implication in his various statements, Mueller didn't come to the end of the investigation, throw up his hands and declare that he just couldn't figure out what to do. He stated that he had been operating under those interpretations of the mandate from the moment he began the investigation and that he had kept Deputy Attorney General Rod Rosenstein in the loop throughout. Barr knew what was coming and understood exactly why Mueller wrote the report the way he did.
Despite all that courtly desire to be fair to the president (who called Mueller and his team "some of the worst people on earth" on Thursday) Mueller famously observed, "If we had had confidence that the president clearly did not commit a crime, we would have said so." They did not have that confidence and that's because the report shows that the president obstructed justice numerous times, based on testimony by his closest associates. Yet a mere 48 hours after Mueller submitted his report to Barr, the attorney general stated categorically that Trump had not committed a crime, obviating the entire purpose of naming a special counsel to make an independent judgment in the first place.
As I mentioned, Barr gave a rushed interview with CBS News in Alaska to respond to Mueller's comments. He said he believed Mueller should have made a conclusion as to whether Trump committed crimes, even if he couldn't be indicted. This is obviously disingenuous. Barr knows very well what conclusion Mueller reached. He is cynically relying on Mueller's anachronistic sense of honor to keep this disagreement from exploding into a public brawl.
Even more disturbing, Barr made a claim he's made before that sounds very ominous for the future if other attorneys general adopt his view. He disagrees with Mueller that evidence gathered by the Department of Justice on a sitting president can be used by Congress for an impeachment proceeding, once again suggesting that the DOJ is not an independent institution. Specifically he said that "the Department of Justice doesn't use our powers of investigating crimes as an adjunct to Congress."
It sounds as though the attorney general does not believe the Department of Justice should ever investigate a president. If it cannot indict him, and cannot collect evidence against him that might be used by Congress, then there is really no point. Essentially, Barr believes that a sitting president is above the law or, as Richard Nixon famously put it, "If the president does it, it's not illegal."
We don't know what's been happening behind the scenes at the Justice Department, but Barr and the Mueller team are not on the same page. Apparently, people needed to hear from Mueller directly in order to understand that. As much as Mueller may not want to go up on Capitol Hill and testify, he's probably going to have to do it. Witness testimony is the only way to make anyone listen to the evidence. And whether Mueller likes it or not — and he clearly doesn't — this dispute with Barr over whether or not the president of the United States committed a crime has turned the former special counsel into a witness as well.