Editor’s Note: In this weekly column “Cross-exam,” Elie Honig, a former federal and state prosecutor and CNN legal analyst, gives his take on the latest legal news and answers questions from readers. Post your questions below. The views expressed in this commentary are his own. View more opinion articles on CNN. Watch Honig answer reader questions on “CNN Newsroom” at 5:40 p.m. ET Sundays.
In his four-page letter summarizing the “principle conclusions” of special counsel Robert Mueller, Attorney General William Barr took unwarranted, unilateral action of enormous consequence when he inserted himself between Mueller – whose report “did not draw a conclusion, one way or the other – as to whether the examined conduct constituted obstruction” – and Congress.
Yes, on the issue of obstruction, Mueller appears to have punted. Barr notes that Mueller “ultimately determined not to make a traditional prosecutorial judgment” and, on the issue of obstruction, that Mueller’s report “does not conclude that the President committed a crime, [and] it also does not exonerate him.”
Mueller clearly found some quantum of compelling evidence of obstruction. Otherwise, he would have reached the same conclusion on obstruction as he did on the lack of coordination between the Trump campaign and the Russian government.
The question then arises: who did Mueller intend to punt to? The answer, it seems, is Congress – not Barr. First, given existing Department of Justice policy against indicting a sitting president, there is only one entity capable of taking action against presidential misconduct – Congress.
It therefore makes sense that Mueller would defer to Congress to make its own judgment about whether his factual findings merited further political action.
There is nothing in the special counsel regulations that contemplates the attorney general making charging decisions. To the contrary, the regulations require the special counsel (Mueller) to “provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.”
There you have it: the special counsel, not the attorney general, makes “prosecution or declination decisions.” The regulations merely require the attorney general to report to Congress any instance where he overruled the special counsel. Barr already has notified Congress there were no such instances.
Barr is, of course, the top prosecutor in the country, and normally would have the power to review and reverse the determination of any DOJ prosecutor. But the entire point of the special counsel is to remove decision-making that impacts the President from the normal chain of command. The attorney general is appointed by and serves under the President, the thinking goes, so decisions relating directly to the President should be made by an independent outsider.
Once he decided to insert himself, Barr reached what was a foregone conclusion given his history: no criminal obstruction. In June 2018, Barr sent an unsolicited, detailed 20-page memo to DOJ arguing that Mueller’s “obstruction theory is fatally misconceived.”
Barr previously offered The Hill a more plainspoken assessment, calling the obstruction investigation “asinine.” No surprise, then, that Barr gave a thumbs-down to what Mueller had deemed a close call on obstruction.
Sure, Congress still might choose to investigate further, but Barr has taken the political wind out of any such effort, at least temporarily. Things might change if and when the full Mueller report comes out, particularly when the particulars of Mueller’s factual findings on obstruction are laid bare. But for now, Barr has taken an expansive view of his own power and inserted himself in a decision that does not appear to have been entirely his to make.
Now, your questions:
Urandu, Tennessee: Will we ever see the Mueller report?
I am confident we will see most of the Mueller report. Barr pledged transparency during his confirmation hearing and said he would put out “as much as I can.” Barr reiterated in his letter that “my goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.”
Barr must be aware of the enormous political pressure in favor of disclosure, including the recent 420-0 House vote calling for disclosure of Mueller’s report. But we may not see all of it, at least not without a political and legal fight.
It seems uncontroversial that classified or sensitive national security information, and material relating to ongoing criminal investigations, should be redacted. Beyond that, grand jury materials – meaning any testimony, documents or other information Mueller obtained through subpoena – by rule must be kept secret and cannot be disclosed publicly.
However, there is a potential workaround: in 1998, independent counsel Kenneth Starr tasked with investigating President Bill Clinton obtained court permission to disclose grand jury materials, which Starr then included in his public report.
The question is whether Barr will seek such an outlet for grand jury materials, or whether he will simply scrub them from the public report – which could leave Swiss-cheese sized holes in it, given Barr’s representation that Mueller served 2,800 subpoenas. (In this case, Barr – not Mueller – would be the one to make this call, because under the special counsel regulations, which differ from the Starr regulations, Mueller’s job is simply to transmit the findings to Barr. In turn, Barr can determine next steps with the report.)
Perhaps most controversially, the White House might claim executive privilege to prevent release of information about the President’s communications with his advisers. For more on that…
Helen, Illinois: Will the President get to see Mueller’s report ahead of time, and will he be able to change it?
We don’t know yet. As discussed above, the decision rests entirely with Barr, who, under the regulations, has broad discretion over whether and how to disseminate Mueller’s factual findings.
White House lawyers reportedly expect to see the report in advance so they can consider exerting executive privilege, and Rudy Giuliani, one of Trump’s lawyers, said we have “reserved executive privilege and we have a right to assert it.”
Given Barr’s broad view of executive power, I do not expect him to push back if the White House asserts executive privilege. However, Congress might object if executive privilege claims result in the redaction of significant portions of Mueller’s report, and that dispute could end up in the courts.
If so, I’d expect White House executive privilege claims to fail. In its 1974 Richard Nixon ruling, the Supreme Court unanimously held that executive privilege protects national security and military secrets but does not serve as a general shield for the President. It therefore seems unlikely a court would permit broad application of the privilege beyond the nation’s most sensitive secrets.
Jeffrey, Kansas: Although DOJ precedent is not to indict a sitting president, don’t the prosecutors from the Southern District of New York have more leeway in proceeding with an indictment, assuming the evidence would warrant it?
The SDNY – where I used to work – is part of DOJ, which is comprised primarily of “Main Justice” (the central DOJ headquarters in Washington DC) plus 93 US Attorneys’ offices, each covering a geographic region. As part of DOJ, the SDNY is bound by the no-indictment policy, just as Mueller was.
While the “Sovereign District of New York” (as the lame lawyer joke has it) is known for fierce independence, the SDNY would not baldly defy an important DOJ policy.
The SDNY does have more leeway than Mueller, however, in the scope of its investigations. While Mueller served under a limited mandate to investigate coordination between the Russian government and the Trump campaign and directly related matters, the SDNY can go wherever the evidence leads it.
The SDNY already has convicted Michael Cohen, and reportedly continues to investigate potential crimes within the Trump Organization and the Trump inaugural committee. Now that Mueller is done, the law enforcement focus will shift a couple hundred miles north from Washington, DC to New York.
Kevin, Illinois: Why do you think Mueller decided against issuing a subpoena for the President to submit to an in-person testimony?
This one baffles me. Mueller reportedly negotiated for months with Trump’s attorneys over the terms of a sit-down interview, and the parties eventually agreed to permit Trump to submit written responses on Russian coordination.
But Trump’s lawyers fought furiously to prevent a live interview on obstruction: “over my dead body,” Giuliani said. (Trump vacillated, at one point claiming he “would love to do that … as soon as possible”).
Given the Trump team’s ultimate refusal to sit for a voluntary interview, Mueller had two choices: (1) issue a subpoena compelling Trump to testify in the grand jury or (2) walk away. After deliberations within DOJ, Mueller decided on door two.
The question then is why Mueller backed down. I see two possible reasons, both of them flawed.
First, a subpoena battle would have gone to the courts – probably the Supreme Court, eventually – and could have taken months to resolve. But Mueller let the negotiation with Giuliani drag on for many months, and Mueller could have sought to take the case directly to the Supreme Court under a rule permitting direct review in cases of high importance and time sensitivity. Had Mueller set a firm, but reasonable deadline right up front, he would have had plenty of time to get the case into the courts and decided by now.
Second, Mueller might have concluded that a sit-down interview with Trump simply was not worth pursuing. But that would make sense only if Mueller clearly had enough evidence to decide obstruction one way or another. We now know, however, that the evidence on obstruction was so close that Mueller was unable (or declined to) make any prosecutorial judgment at all, instead noting “difficult issues” with the obstruction evidence and declaring that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Given how razor’s-edge close the evidence was on obstruction, it is even more baffling that Mueller backed down and never got Trump in a room to answer questions directly on the subject.
Chuck, Kentucky: If the President issues any pardons, do they have to go through any type of administrative vetting? And pardons more likely now?
Traditionally, the Department of Justice carefully reviews all pardon requests through the Office of the Pardon Attorney and then makes recommendations to the President. President Trump reportedly has ignored this process thus far, granting pardons without input from DOJ or the Office of the Pardon Attorney.
I think Barr’s letter increases the likelihood that Trump issues pardons. Trump appears to be ramping up the pre-pardon rhetoric, declaring that “so many people have been so badly hurt” by Mueller’s probe. Potential pardon recipients include Paul Manafort and Michael Flynn; Trump has tweeted sympathetically about both.
The one to watch is Roger Stone. Trump has tweeted positive encouragement for Stone, and a pardon would end Stone’s November 2019 criminal trial before it starts. That trial could yield damaging information, including the identities of the “senior Trump Campaign officials” who allegedly directed Stone to contact WikiLeaks about the dump of hacked e-mails. Trump already had an incentive to squash that trial, and now he has the political cover to do it.
Three questions to watch:
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1) What will House Democrats do if Barr does not meet their April 2 deadline for disclosure of the full Mueller report?
2) How will House Democrats adjust their oversight strategy moving forward in light of Mueller’s findings?
3) Will DOJ heed the President’s calls to investigate “the other side” (apparently referring to those who initiated Mueller’s investigation)?