Pelosi’s ‘Lock Him Up’ Moment

(Bloomberg Opinion) -- The speaker of the House has accused the U.S. attorney general of committing a crime by lying to Congress. That’s a huge deal … isn’t it?

In principle, it should be. Such public accusations are supposed to reflect strong evidence of criminal conduct and intent.

And an accusation against the nation’s top law enforcement officer should have special weight. For one thing, if the attorney general is credibly accused of a crime, there needs to be someone independent of his authority installed to investigate and charge him, like a special counsel or an independent prosecutor.

Yet it’s hard to escape the thought that the accusation Nancy Pelosi made Thursday against William Barr shouldn’t be treated so seriously. The circumstances — and the content of the accusation — raise the strong possibility that Pelosi is making a political move in a political game.

If that’s true, it’s evidence that President Donald Trump’s rhetoric of criminal accusations — like those he’s made against Hillary Clinton and even Barack Obama — are having an inflationary effect that’s now infected Pelosi. Trump’s accusations weren’t meant to lead to actual consequences. His aims were nakedly political.

Pelosi, too, seems to have strictly politics in mind. Barr was scheduled to testify Thursday before the House Judiciary Committee. But negotiations broke down when Barr disagreed with being questioned by committee counsel rather than the representatives themselves. He refused to show up. That set the stage for Pelosi’s news conference and the accusation she delivered.

Of course, once the speaker of the House has said a potential witness has perjured himself before Congress, you can be pretty sure that witness isn’t going to testify before any House panel. Barr would have to expect that representatives would accuse of him of a crime face-to-face. That would be bad for Barr and bad for Trump.

So Pelosi’s accusation seems like a guarantee that Barr won’t testify. That’s a declaration of political war — war against the attorney general, and maybe against the president.

All this makes the accusation seem blatantly political.

So does the apparent content of the charge. Pelosi was saying that Barr lied when Representative Charlie Crist asked him at an April 9 hearing about news reports that members of special counsel Robert Mueller’s team were dissatisfied with Barr’s summary of the Mueller report. Barr said he didn’t know what the news articles were referring too.

That was before the existence of Mueller’s two letters to Barr was made public on Monday. The text of the March 27 letter expressed concern about public misperception of the Mueller report based on the summary Barr released on March 24.

Could Barr successfully be prosecuted for his answer to Crist, assuming there was someone to charge him?

The short answer is, probably not. We heard Barr’s defense when he testified before the Senate Judiciary Committee. He split hairs, saying that Mueller’s letters didn’t actually say his summary was inaccurate — just that the summary created public misperception. Thus, Barr wasn’t lying when he told Crist he didn’t know the reference to dissatisfaction with the content of his summary.

His answer rests on a distinction between dissatisfaction with the content of the summary and dissatisfaction with its public effects. That isn’t very convincing. Barr’s answer was misleading.

But it isn’t quite perjury, either. It would be close to impossible to prove beyond a reasonable doubt that Barr knowingly lied to Crist. He just gave an answer that was only true if read in some highly technical sense.

The upshot is that Pelosi is playing Trump-style politics. The accusation against Barr is Pelosi’s version of “Lock her up.”

Writ large, that’s a win for Trump. He’s successfully inflated the rhetoric of crime so that we accept that such accusations are only political.

And he’s better at inflated rhetoric than anyone else.

Barr’s answer was misleading. But Pelosi’s political gambit is also a problem — for America more than for Barr or Trump.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net

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

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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