Given his demonstrated commitment to honoring the chain of command and respecting rules, might Mueller be reluctant to express his own judgment, since Barr has said that the president’s extreme powers under Article II make him virtually incapable of committing obstruction of justice? It seems unlikely. Accepting that view would render Mueller’s entire investigation of Trump’s alleged interference an idle exercise. And, again, it seems to be a bridge Mueller crossed some time back. The Mueller report expressly addresses the attorney general’s constitutional vision and rejects it. Barr’s view lacks legal support, and is inconsistent with the independent role Mueller was commanded to play as special counsel.
Finally, what about Mueller’s stated reason, based on notions of fair play, for declining even to express a judgment about probable criminality by the president? There—and only there—Barr seems to have it right. A speculative opinion of the Office of Legal Counsel foreclosing indictment of the president, based on no explicit constitutional or statutory language, should not be expanded so as to prevent a special counsel from doing his job. Mueller should accept Barr’s interpretation on this issue of departmental guidance, and give us the benefit of his professional judgment on the legal significance of the facts he has found. It is the only way he can finish the job, and the country’s future depends on it.