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William Barr Did What He Was Hired to Do

Charles P. Pierce
Photo credit: Win McNamee - Getty Images

From Esquire

If the president* really had an ounce of empathy in him, he'd issue mass pardons immediately because, otherwise, a number of people are going to feel really stupid going off to federal prison. They will be going off to federal prison knowing that they committed their crimes in defense of nothing. William Barr on Sunday did what he was hired to do. He summarized Robert Mueller's report in the most favorable light possible to the administration* and, where he couldn't do that-specifically, on the crime of obstruction of justice-he just decided to turn Mueller's own conclusion completely upside down. But, in any case, if Barr's summary is taken whole, Paul Manafort et. al. got caught up in a criminal conspiracy in which the only crimes were their own.

To refresh everyone's memory, prior to being appointed Jefferson Beauregard Sessions's successor, Barr wrote a 19-page memo regarding the Mueller investigation in which he pretty much predicted his own summary.

Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction. Apart from whether Mueller a strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.

...in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way - for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power ~ a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.

So, when you get to the following passage in Barr's summary, you can't possibly be surprised.

After reviewing the Special Counsel's final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.

In making this determination, we noted that the Special Counsel recognized that "the evidence does not establish that the President was involved in an underlying crime related to Russian election interference," and that, while not determinative, the absence of such evidence bears upon the President's intent with respect to obstruction.

And thereby hangs the upcoming brawl. Mueller says essentially that he is drawing no conclusions on obstruction of justice. Meanwhile, Barr-and Rod Rosenstein-are saying that, because Mueller drew no conclusions, he did in fact draw a conclusion. The law, as it has been said, is an ass.

Photo credit: Tasos Katopodis - Getty Images

There will be insufferable cock-a-doodle-doo'ing from the usual suspects for the next two years, and we all better get used to it. I suspect that both Barr and Mueller will get hauled before various congressional committees. In fact, the basic overriding result of Barr's summary is that the whole matter now has been dumped into the laps of a divided and hyper-partisan Congress in such a way as to guarantee that the Congress will be more divided and more hyper-partisan than ever before. The Democratic House will hold hearings and the Republican Senate will yell about Hillary Clinton. The Internet will be indiscriminately insane for the foreseeable future.

For those of us who are Iran-Contra obsessives-and you know who you are out there-this summary carries a similar aroma. A lot of important people are going to pass the buck around to each other, over and over again, until the country forgets what all the fuss was in the first place. This should be no surprise, again, because, back in 1992, when he was George H.W. Bush's AG, Barr advised that president to pardon all of the people convicted in Iran-Contra-people who, unsurprisingly, all could have testified that Bush's non-involvement was a self-serving lie. Maybe he'll give this president* the same advice. Who knows?

The wild card, of course, is the president* himself. He's got another wankfest scheduled this week and he's liable to say anything. And Paul Manafort still will be in jail simply because he got tied up with a guy who opened the floodgates on Manafort's crimes. He'll sit there forever, hoping for a pardon that will never come because he's not the guy who got to appoint his own attorney general to bail him out.

Sucker.

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