Andrew Napolitano: Mueller didn't try to indict Trump because he knew Barr would never let him do so

Does this explain Mueller’s mystifying punt on obstruction? Surely he read the strange unsolicited memo that Barr sent to Rod Rosenstein last year, arguing at length that the president can’t be charged with obstruction when he’s exercising a lawful power granted to him by the Constitution (e.g., firing the director of the FBI). He must have realized that Barr would have overruled him had he tried to indict Trump on those grounds. And he may have feared that Barr also would have overruled him if he tried to indict Trump on other grounds, like witness-tampering, possibly on the theory that the only tribunal constitutionally empowered to officially accuse the president of a crime is the House of Representatives.

Faced with the prospect of a sensational, wrenching public clash with the new AG over the outcome of the Russia investigation, maybe Mueller balked. He’s an institutionalist, after all. He led the FBI for more than a decade and worked for the DOJ in different capacities off and on for years before that. He maintained a stony silence throughout the process in the apparent belief that prosecutors are supposed to speak only through the facts they’ve gathered. If it came out that he had recommended indicting the president and that Barr had thwarted him, whatever’s left of the DOJ’s reputation as an institution that stands apart from politics would have been incinerated. And it would have been to no avail on Mueller’s end: Barr’s the boss, so his view would have carried the day.

But what about Barr’s own suggestion from yesterday, that Mueller could have accused Trump of a crime without indicting him? Would Barr have let Mueller get away with that if Mueller had tried it? Not everyone thinks so:

Either way, it may be that Mueller figured his best shot at getting Barr to be transparent with the report was to refrain from accusing Trump of anything. Simply state the evidence and withhold judgment on whether Trump’s actions amounted to obstruction. If Barr ended up stepping in and ruling that Trump wouldn’t be charged, that’s fine from Mueller’s standpoint. The report was designed to persuade Congress and the public that Trump obstructed justice, I think, not the Attorney General or the DOJ. By taking the path of least resistance on obstruction, Mueller may have achieved his goal of making sure that members of Congress got to see (most of) his work.

By the way, here’s an interesting catch by anti-Trumper Benjamin Wittes. Barr was asked by CBS about his summary of Mueller’s report and said this:

Asked about the fundamental difference between his and Mueller’s views on what the evidence gathered during the Russia probe means, Barr said, “I think Bob said he was not going to engage in the analysis. He was not going to make a determination one way or the other. We analyzed the law and the facts and a group of us spent a lot of time doing that and determined that both as a matter of law, many of the instances would not amount to obstruction.”

“As a matter of law?” Crawford asked.

“As a matter of law. In other words we didn’t agree with the legal analysis, a lot of the legal analysis in the report. It did not reflect the views of the department,” Barr said. “It was the views of a particular lawyer or lawyers and so we applied what we thought was the right law.”

That’s not what Barr said last month, notes Wittes. He claimed at the time that he applied Mueller’s view of the law in analyzing obstruction, not his own:

Maybe Mueller punted on obstruction because he suspected Barr … just wasn’t going to be a square-dealer when it came to accusing the president. If the deck was stacked against Mueller, the only thing to do was to appease Barr by declining to accuse Trump of anything and focus instead on making sure that the report itself was made public. Mission accomplished.