During the hearing, Barr conceded that when Mueller submitted his report, Mueller did not say that he intended to leave the obstruction decision to Barr. But Barr would not concede that Mueller intended to leave the obstruction decision to Congress. Instead, Barr said that he made the decision himself because “that’s generally how the Department of Justice works. Generally, grand juries are to investigate crimes and a prosecutor’s role at the end is binary. There are charges or no charges, or is this a crime or not a crime?” And for good measure, he added, “I’ve had some experience in that field.”
But a special counsel’s investigation of a president is anything but the general practice of the Department of Justice. A special counsel’s role is not binary. In fact, one could argue that a special counsel should make no charging decision at all, instead, collecting the evidence and then turning it over to Congress to decide whether the facts amount to a high crime or misdemeanor for which impeachment is appropriate.
Barr’s letter dissects the elements of the criminal statute for obstruction, applies the Justice Department’s Principles of Federal Prosecution that are used in normal criminal cases, and uses the standard of proof as guilt beyond a reasonable doubt. But these are the standards that apply in a normal criminal case, not in an impeachment proceeding. It seems that by taking the position that a sitting president cannot be indicted, it follows that the standard for analyzing alleged misconduct of the president should not be the standard that is used to obtain indictments. Instead, Congress should be permitted to analyze the conduct under its own standards.