For Barr, the Tests on the Rule of Law Have Just Begun

(Bloomberg Opinion) -- After winning the presidential election, the White House finds itself under criminal investigation. It cries “witch hunt.” It attacks the Justice Department as “partisan.” It tries to discredit the “lying” press.” It refers to federal prosecutors as “liberal Democrats” and as “biased.”

What is the attorney general to do?

The question was posed in 1973, when Richard Nixon’s vice president, Spiro T. Agnew, was under federal investigation for corruption. Agnew was alleged to have accepted hundreds of thousands of dollars in kickbacks and bribes when serving as country executive, governor and vice president.

Nixon, Agnew and other White House officials tried to terminate the investigation – even more fiercely, to discredit it. Everything depended on the choices of Nixon’s new attorney general, Elliot Richardson.

The most important question was whether Richardson, a lifelong Republican, would bow to the wishes of the White House. A more specific question was whether he would permit disclosure of the evidence against Agnew. Richardson did not only have to deal with serious ethical issues. He also faced the strategic problem of navigating an exceptionally challenging legal and political situation within the executive branch and in a sharply polarized country.

On the ethical front, Richardson never wavered. On the strategic questions, he was shrewd and unerring.

First and foremost, he protected the investigation. He told the investigators to do their job. He also balanced his competing obligations, giving the White House a sense that while he understood that he worked for the president, he was not going to budge.

During the plea negotiations, Agnew attempted to restrict public disclosure of the evidence against him. Richardson’s decision was straightforward: That wasn’t negotiable. With respect to evidence of wrongdoing by the vice president of the United States, secrecy would be intolerable.

All of the evidence was made public. Ten days later, Agnew resigned.

Let’s bracket the question whether special counsel Robert Mueller’s report fully exonerates President Donald Trump. The president’s fiercest critics should acknowledge the possibility that after a full (or sufficiently full) reading of the report, if they do get that opportunity, they will learn that not only was there no coordination or conspiracy between Russia and the Trump campaign, but also that the president did not come close to obstructing justice.

In his brisk initial letter to Congress on March 24, Attorney General William Barr stated that there was no coordination with Russia and no obstruction. In his cautious follow-up on March 29, Barr listed legitimate reasons for refusing to disclose some portions of the Mueller report, including protection of intelligence sources and personal privacy.

Fair enough. And in his testimony on Tuesday, Barr promised to release an appropriately redacted report, with clear labels, within a week. The three-week delay from receipt of the report is not ideal.

Far more troubling are reports, based on apparent reactions of members of Mueller’s team, that Barr’s summary did not accurately reflect what they wrote – and that it cast some of their findings in an unduly positive light. It is also fair to point out to the attorney general that in 1974, the executive branch supported sending evidence gathered before a grand jury in the Watergate investigation over to Congress. Barr indicated that the Justice Department would not join a motion to allow the same with respect to the Mueller investigation. 

Elliot Richardson is rightly considered an American hero. That is not because he stabbed his White House in the back. It is because he managed to balance loyalty to his bosses with loyalty to the nation, and because he understood the importance of maintaining public legitimacy.

Barr will be dealing not only with the Mueller report, but also with a host of federal investigations of Trump and his associates, alongside pressing questions about the authority of the president to act unilaterally. As compared with the 1970s, an evident problem is the current political divisions; they are inclining Republicans to support Trump just because he is one of them, and Democrats to oppose him on principle. 

It is extraordinary but true that for many decades, the Justice Department has enjoyed a measure of independence, and that in the face of White House pressure, it has showed occasional stubbornness.

That has been a source of real frustration to both Republican and Democratic presidents. But it is an essential part of the national commitment to the rule of law. The coming months are going to test that commitment.

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.”

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