He’s referring here specifically to the allegation that Trump wanted Mueller fired at one point. There are three problems with accusing Trump of obstruction over that, Barr told Dianne Feinstein. One: As president, he has the constitutional power to fire the special counsel. The act itself wouldn’t be unlawful. Two: Even if Trump could be prosecuted for obstruction, under federal law the DOJ would need to prove he had a “corrupt intent” in firing Mueller. And if it’s true that Trump wanted him out because he thought Mueller had conflicts of interest, that wouldn’t be “corrupt” intent. Conflicts of interest — removal “for cause” — are a legitimate reason to remove the special counsel and replace him with someone else.
Three: It matters that there wasn’t probable cause to believe Trump was guilty of the underlying crime of conspiracy, i.e. collusion, with Russia. If there was then we might reasonably view Trump’s attempts to remove Mueller as a corrupt attempt to protect himself from criminal liability. But if there wasn’t, if he knew he was innocent, then what was the alleged “corrupt intent” driving Trump’s interest in removing Mueller? He had every reason to believe he’d be vindicated in the end. There was no criminal liability he was trying to spare himself from.
Watch, then read on.
I think his read on the first point is accurate, if immensely unsatisfying. If, under the Constitution, the prosecution power ultimately resides in the president then logically the president has final say on whether a particular investigation proceeds. He might block an investigation for hugely corrupt, self-interested reasons — and might fairly be impeached or voted out of office for doing so — but it’s hard to see how he can be charged with obstruction for doing so given his constitutional authority. (Presumably the DOJ could always revive the investigation under orders from his successor once he’s out of office, provided the statute of limitations hasn’t run yet.) However repulsive it is to believe that the president is above the law while he’s in office, that’s what granting him power as the prosecutor-in-chief means. If our citizenry is such garbage that they’d tolerate a chief executive short-circuiting criminal investigations of himself and his allies then we have a civic problem much bigger than Russiagate.
I’m shakier on point two inasmuch as a president could always try to manufacture some “for cause” argument to rid himself of a special counsel who’s pestering him. One of Trump’s complaints about Mueller, remember, was that he might be holding a longstanding grudge over a dispute … involving golf fees. Rod Rosenstein and the DOJ were aware of the complaints and evidently had no ethical objection to Mueller leading the Russiagate probe. If Trump had overridden them and fired Mueller “for cause,” over his alleged conflicts of interest, how would Barr go about analyzing that in terms of obstruction? Would he make his own assessment about whether Mueller’s conflicts were problematic or not? Would he default to the judgment of the DOJ’s ethics experts that, no, there was no “good cause” to fire Mueller? Or, as I suspect, would he simply defer to Trump since he’s the prosecutor-in-chief? If he deferred to Trump then essentially it’d be impossible for the president to evince “corrupt intent.” Whatever reasons he gave as “good cause” for firing Mueller, however thin, would be the end of the argument.
Point three is shaky too. Every Democratic prosecutor in the country has spent the past few weeks emphasizing that you don’t need to be indicted on an underlying crime in order to be charged with obstruction. You can go to prison for obstructing an investigation that doesn’t incriminate you. Barr seems to suggest otherwise here, though: If you know you’re innocent and you sincerely believe that prosecutors are out to get you for their own corrupt reasons, then how could you be said to have “corrupt intent” in impeding an investigation? The problem with that logic, as TPM notes, is that it “gives the President carte blanche to interfere with any probe he feels unfairly targeted by.” And, Trump being Trump, he would inevitably feel unfairly targeted by any investigation that targeted him, whatever the reason. Again, I wonder what standard Barr would use in assessing whether Trump’s intent here was “corrupt” or not. Would he use a subjective standard, in which it’s enough that the president sincerely believed this was a partisan “witch hunt” in wanting to fire Mueller, or would he use an objective standard, in which he and other DOJ prosecutors would try to assess whether it’s reasonable for the president to feel that way? If it’s the latter then Barr’s essentially arguing that Trump’s “witch hunt” complaints were objectively meritorious, or at least sufficiently so to get him off the hook on a hypothetical charge.
And incidentally, would this logic also extend to obstruction in the form of, say, witness tampering? If the president had good reason to believe he was being persecuted by political enemies, would he be guilty of “corrupt intent” if he manufactured evidence that pointed away from any criminal liability for him? If he knows he’s innocent and has the absolute constitutional power to fire Mueller and end the Russiagate probe, why doesn’t he have inherent power to make a circus out of it instead by injecting it with all sorts of fake memos and perjured testimony to ensure that he’s not wrongly charged?
I’ve never understood the idea that because Trump knew he hadn’t conspired with Russia that he couldn’t possibly have had the intent to obstruct the investigation. The most notorious single incident from the Russiagate investigation was him allegedly leaning on Comey to go easy on someone else, namely, his pal Mike Flynn. Donald Trump Jr seemed to be in serious criminal jeopardy for the better part of two years, since the Trump Tower meeting with the Russian lawyer in 2016 became public. Trump may have known he himself was innocent while having grave doubts about whether the people closest to him would be convicted. Try tampering with a federal prosecution to protect your son or your business partner and see how you do in court with a “I didn’t personally benefit from the obstruction” defense. Besides, as we saw in the Michael Cohen prosecution, Trump’s top cronies may have information about him that’s unrelated to Russiagate but may nonetheless place him in criminal jeopardy for other reasons. The longer Russiagate slogged on, the greater the odds that one of them would roll over on him or even invent something whole cloth to incriminate him in hopes of getting leniency from Mueller. Mueller did in fact make multiple criminal referrals to other DOJ prosecutors based on evidence he acquired during his probe. If Trump wanted to end Russiagate because he feared it’d ultimately lead to trouble for him in Stormygate or some as yet unknown -gate, how is that not “corrupt intent” by Barr’s reasoning?