A recent legal decision and partially released memo make clear what we have long known: Attorney General William Barr’s primary mission as head of the Department of Justice was to prevent President Donald Trump from facing consequences for his actions, no matter what the special counsel or anyone else uncovered.
Many of us have long suspected that Barr deliberately set out to spin the contents of the Mueller report and manufacture bogus legal analysis in order to protect Trump from facing consequences for the crimes laid out in the report. We now have proof that Barr did exactly that.
Barr’s ruse worked. Americans were confused about what special counsel Robert Mueller did and did not find, Trump escaped any accountability, and, two years later, most people have forgotten about the Mueller investigation.
Now that we know the truth, it’s time for that all to change. And it’s time for prosecutors to finish the investigation into Trump’s obstruction.
Trump dodges indictment as president
While he was president, Trump could not be charged with obstruction of justice because of the Department of Justice’s policy that a sitting president cannot be indicted. Now that Trump is no longer protected by that policy, the Department of Justice must finish Mueller’s work and entrust impartial career attorneys with the task of determining whether to file charges against him.
When the Mueller report was unveiled, Barr did everything in his power to cover up a simple fact: The evidence diligently assembled by the special counsel would have been sufficient to charge any ordinary citizen with obstruction of justice.
The hundreds of pages of evidence in the report set out multiple episodes in which the facts appear to quite clearly satisfy all the elements of federal obstruction of justice offenses. As more than 1,000 former federal prosecutors wrote in 2019, “the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting president, result in multiple felony charges for obstruction of justice.”
Two weeks ago, in response to litigation by the group I head, Citizens for Responsibility and Ethics in Washington, the Department of Justice released portions of a memo that shed light on how Barr deceived the American people and delivered to Trump a false and empty “exoneration.”
While it is troubling that the Justice Department continues to fight disclosing the full memo, the brief portion they did release gives up the ghost as to what Barr and the department were trying to do in 2019.
“Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public,” the memo says. It then recommends that the attorney general “therefore” do his own analysis.
In other words, as Judge Amy Berman Jackson wrote in her blistering opinion in the case, “what the writers were actually discussing was how to neutralize the impact of the Report in the court of public opinion."
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The principle that no one is above the law is not self-enforcing. Justice can only be served if law enforcement agencies are willing to pursue justice against anyone who violates the law--regardless of the office they hold. There is no greater threat to the rule of law than failing to hold accountable the most powerful among us.
Mueller's work remains unfinished
Neither Mueller nor Barr made a final decision as to whether Trump should be prosecuted for obstruction of justice because DOJ policy precluded that outcome as long as he was president. Now that Trump is no longer president, the department needs to decide whether he will be prosecuted, and Attorney General Merrick Garland should let the American people know how that decision will be made.
Regardless of what process Garland establishes, the department must give deference to impartial career attorneys who are fully capable of applying DOJ's principles of prosecution to the obstruction of justice case against Trump and deciding whether prosecution is merited. Until that decision is made, Mueller’s work will remain unfinished, and the American people will have no assurance that the rule of law remains.
Nothing is more important for the future of our democracy than ensuring that Trump does not escape justice forever simply because he was once elected president. There is vast evidence that Donald Trump committed crimes. Time, and litigation, have removed both the legal protection he had as president and the illusory claims of exoneration spun by Barr. Now is the moment for America to see equal justice in action. It’s time to finish what Mueller started.
Noah Bookbinder, a former criminal prosecutor for the Justice Department's Public Integrity Section, is the executive director of Citizens for Responsibility and Ethics in Washington. Follow him on Twitter: @NoahBookbinder
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This article originally appeared on USA TODAY: Trump obstruction: Finish Mueller's investigation and uphold the law