In the final passages of his report, special counsel Robert Mueller cited the Supreme Court case of US v. Nixon for the “fundamental principle of our government” that no person — including the president — “is so high that he is above the law.” (Vol. II, pp. 180-181) Donald Trump is attacking that principle, and Attorney General William Barr and White House counsel Pat Cipollone are helping him. One — and so far only one — Republican in Congress, Rep. Justin Amash (R-MI) is pushing back.
Mueller Defers to Congress
Mueller found “substantial evidence” that Trump had obstructed justice. But he concluded that existing Department of Justice policy prevented the indictment of a sitting president. So when Mueller wrote that Trump was not above the law, what mechanism of accountability did he have in mind?
The answer is on the first page of his report’s second volume: “the constitutional processes for addressing presidential misconduct.” He was looking at you, House of Representatives — and he made that point repeatedly:
- “Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice.” (Vol. II, p. 8)
- “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” (Vol. II, p. 8)
- “Article II of the Constitution does not categorically and permanently immunize the President from potential liability for the conduct that we investigated. Rather, our analysis led us to conclude that the obstruction-of-justice statutes can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.” (Vol. II, pp. 159-160)
- “[W]e concluded that Congress can validly regulate the President’s exercise of official duties to prohibit actions motivated by a corrupt intent to obstruct justice.“ (Vol. II, p. 169)
But on the way to Congress, Mueller’s report encountered William Barr.
Barr Confuses the Public
Mueller realized that most Americans wouldn’t read his 448-page report. As the Trump-Russia Timeline reveals, he prepared summaries of his work and conclusions for public consumption. When Barr ignored those summaries, Mueller expressed his displeasure:
MAR. 5: Mueller tells Barr that the “introductions and executive summaries of our two-volume report accurately summarize this Office’s work and conclusions.”
MAR. 22: Mueller submits his 448-page report.
MAR. 24: In the early afternoon on Mar. 24, Mueller reminds Barr that his report includes introductions and summaries written specifically for public consumption. But Barr ignores them and sends Congress his own four-page summary that excerpts misleading sentence fragments from Mueller’s report.
MAR. 25: Mueller sends Barr a letter (not yet publicly available) complaining that Barr’s purported summary paints a misleading picture.
MAR. 27: Mueller sends Barr another letter: “The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the content, nature, and substance of this Office’s work and conclusions. We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigations.”
APR. 18: At a press conference two hours before releasing a redacted version of Mueller’s report, Barr says, “As [Trump] said from the beginning, there was in fact no collusion.” He then repeats Trump’s “no collusion” catchphrase four more times. But Mueller made no such determination.
MAY 2: Barr’s initial spin endures because few people have read Mueller’s report. According to a CNN poll, three percent said they have read “all” of the report; ten percent have read “some”; eight percent have read “a little.” Three-quarters have read none of it.
Trump Stonewalls and Worse
Witnesses testifying in televised hearings would undermine Barr’s spin and bring Mueller’s report to life, just as they contributed to the death of Richard Nixon’s presidency. So Trump is stonewalling — trying to block key witnesses, including former White House counsel Don McGahn, from congressional appearances — while simultaneously pushing a distracting counter-narrative: investigate the investigators.
APR. 24: Trump says, “We’re fighting all the subpoenas.”
MAY 2: After Barr refuses to appear before the House Judiciary Committee, Trump tells Fox News that no other current or former White House officials will appear either: “They’ve testified for many hours, all of them. I would say, it’s done.”
MAY 15: White House counsel Pat Cipollone — who is supposed to represent the office of the presidency, not Trump personally — calls for an end to the House Judiciary Committee’s investigation. He labels it an attempted “do-over” of Mueller’s work and refuses to produce any requested documents relating to 81 present and former White House staffers.
MAY 17: In an interview with Fox News, Barr discusses his new inquiry into the origins of the FBI’s counterintelligence investigation of Trump (which Congress and the public still haven’t seen): “I’ve been trying to get answers to questions and I found that a lot of the answers have been inadequate,” he says. “And I’ve also found that some of the explanations I’ve gotten don’t hang together.” In an earlier interview with The Wall Street Journal published the same day, Barr uses Trump’s inflammatory rhetoric, saying, “Government power was used to spy on American citizens.”
Amash Stands Up For Constitutional Democracy
MAY 18: Rep. Justin Amash’s (R-MI) Twitter thread on the implications of the Mueller report begins with these principal conclusions:
“1. Attorney General Barr has deliberately misrepresented Mueller’s report.
“2. President Trump has engaged in impeachable conduct.
“3. Partisanship has eroded our system of checks and balances.
“4. Few members of Congress have read the report.”
Trump, Barr, and Cipollone seek to put Trump above the law — rarified air reserved for British kings prior to the Magna Carta, dictators around the world, and strongmen throughout history. Like Mueller, Amash understands that only Congress stands in their way. He put country over party, so now he’s Trump’s target.
This is the sixth in a series of posts by Steven J. Harper on the Mueller report. The first five installments are available here, here, here, here, and here. Steve is the creator and curator of the Trump-Russia Timeline appearing at Dan Rather’s News & Guts and at Just Security. He’s an attorney, adjunct professor at Northwestern University Law School, and author of four books, including Crossing Hoffa — A Teamster’s Story (Chicago Tribune “Best Book of the Year”) and The Lawyer Bubble — A Profession in Crisis. He blogs at The Belly of the Beast. Follow him on Twitter (@StevenJHarper1).