With the special counsel investigation complete, the four-page summary letter sent by Attorney General William Barr to Congress currently offers the only insight into the Mueller report.
Mueller’s apparent choice to decline to make a charging decision on whether President Trump obstructed justice, and instead outsource that decision to Attorney General William Barr and Deputy Attorney General Rod Rosenstein, has many experienced attorneys puzzled.
Barbara McQuade, a former U.S. attorney who now teaches at the University of Michigan Law School, told TPM in an email that it was “very odd” that Mueller would not reach a conclusion on obstruction, leaving the decision in Barr’s hands instead.
“The whole reason to have a special counsel is to insulate the decision maker from the executive chain of command,” McQuade said. “By making the decision himself, Barr feeds into the cynical narrative that President Trump appointed an AG who would protect him.”
Justin Slaughter, an attorney and partner at Mercury Strategies, echoed McQuade’s assessment.
“The smarter move for Barr and Rosenstein would have been to let a career DOJ official — or even a political — make the decision,” Slaughter said, adding that that would “have raised holy hell from the president.”
Others suggested that Mueller’s decision to punt makes sense, and that Barr’s decision was not completely out of the ordinary.
Alex Whiting, a Harvard Law Professor and former federal prosecutor, told TPM he understood why Mueller “deferred on the obstruction charges.”
“There is no doubt that they raise a number of complicated legal and factual questions, as has been discussed endlessly by commentators during the investigation,” he wrote in an email. “An aggressive prosecutor might be able to make a case here, a more cautious one might hesitate. Since much of it is a judgment call, I can see why Mueller would let that decision be made by others.”
Ronald Weich, a dean of the University of Baltimore Law School and a former assistant attorney general, was less surprised that Barr decided to make a prosecutorial decision on the basis of lack of evidence, rather than use the Justice Department opinion that sitting presidents can’t be indicted to punt on the question.