Barr’s Quick Decision on Obstruction Was Awkward. And Troubling.

(Bloomberg Opinion) -- Attorney General William Barr has produced an exceptionally brief summary of what is undoubtedly a lengthy report from special counsel Robert Mueller. For an issue of this magnitude – involving potentially serious misconduct by a successful presidential campaign and a sitting president – it is best to insist on a principle of neutrality, and to evaluate the summary not in political terms, but as a matter of fact and law. 

The central point of the Mueller investigation was to determine whether the Donald Trump campaign knowingly conspired or coordinated with Russian conspiracies to influence the 2016 presidential election. 

Mueller’s conclusion is straightforward: He did not find evidence of any such conspiracy or coordination, notwithstanding repeated Russian efforts to assist the Trump campaign.

Russia’s Internet Research Agency conducted disinformation and social media operations in the U.S. to sow discord and to interfere with the election. Russia also conducted computer-hacking operations to gather and spread disinformation, again to interfere with the election. In both cases, the special counsel did not find a conspiracy or knowing coordination with any official in the Trump campaign.

The much trickier issue involves obstruction of justice. On that count, the special counsel declined to reach a legal conclusion. In a sentence that will be much quoted, he said that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”

What does that mean? Mueller and his team evidently found the issue difficult and decided to lay out evidence on both sides of the question. They were not clear that the president committed a crime – but they also weren’t clear that he didn’t. They left the ultimate judgment to the attorney general himself. 

In a way, that was responsible and prudent, especially if the legal issue was genuinely difficult. But it is not exactly ideal. Against the unique backdrop of the last year, the recently confirmed attorney general is not in the best position to make an independent decision about whether his boss committed a crime.

Placed in that position, Barr made his decision, apparently at warp speed. In what may be the most interesting part of his letter, he concluded that Mueller’s evidence is not sufficient to establish obstruction of justice. 

Barr did not invoke constitutional principles, which can be read to insulate the president from prosecution in a case of this kind. Instead he noted that to prove obstruction of justice, it is necessary to establish “corrupt intent,” and to do so beyond a reasonable doubt. 

Barr emphasized the absence of evidence that the president was involved in an underlying crime related to Russian election interference. As he noted, that isn’t enough to resolve the obstruction question -- but he found it relevant to the president’s intent. Barr concluded that under his department’s principles governing charging decisions, Mueller’s report did not identify any actions, on the part of the president, that would establish the technical elements of obstruction of justice (beyond a reasonable doubt).

Let’s step back a bit – both from the details and from the question whether the White House “won” or “lost.” Here are the four central points in order of importance:

First, Mueller’s report apparently gives a lot of detail about Russia’s interference with the 2016 election. Such interference is not tolerable. It happened. It must not be allowed to happen again.

Second, Mueller found no knowing conspiracy or coordination between Russian officials and the Trump campaign. Every American has reason to be relieved by that finding, no matter for whom they voted, and even if they remain suspicious of some of Trump’s statements and actions with respect to Russia.

Third, Mueller and his team seem to have been badly torn on the obstruction question. They were unwilling to conclude that the president of the United States did not commit that crime. Every American has reason to be shaken by that, no matter for whom they voted.

Fourth, Barr’s resolution of the obstruction issue is awkward. He appears to have reached his conclusion essentially immediately -- on a tough question on which Mueller and his team evidently struggled for a long time. 

Barr’s public explanation was not only favorable to his boss; it was thin and brisk. Whether Barr was right or wrong, that’s troubling.

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

©2019 Bloomberg L.P.