[NationalReview] The most telling revelation in Attorney General William Barr’s letter about Special Counsel Robert Mueller’s much-anticipated final report is that Mueller has punted on the main question he pursued for nearly two years of investigation: Did President Trump commit an obstruction offense?The Barr letter gingerly states that, after making a "thorough factual investigation" into alleged instances of obstruction, Mueller "ultimately determined not to make a traditional prosecutorial judgment." Since making a prosecutorial judgment was Mueller’s job, that means he defaulted. What did we need him for?
In the memo, Barr argued that the obstruction theory Mueller’s staff appeared to be pursuing was constitutionally infirm and practically unworkable. Based on statutory law, the Constitution, court precedent, and longstanding Justice Department guidelines, Barr posited that an indictment of a president for obstruction could properly be based only on plainly corrupt acts ‐ not constitutionally ordained exercises of presidential prerogative ‐ that involve tampering with evidence and witnesses.
In the end, then, Mueller had a choice to make: Either (a) accept that Barr’s interpretation of obstruction law was correct, or (b) recommend an indictment based on the more expansive interpretation of obstruction that his staff seems to have been pursuing and dare Barr to reverse him. [insert weasel graphic here]
The special counsel couldn’t bring himself to decide. In effect, he accepted Barr’s construction of the law, but he declined to admit that he was doing so. After all, if Barr was right all along, what were the last 22 months about?
"While this report does not conclude that the President committed a crime, it also does not exonerate him." That’s a political statement, not a prosecutorial statement.
Prosecutors never "exonerate" people. It is for others to say whether a person has been exonerated. All prosecutors can say is whether there is enough evidence to charge or there is not. If there is not, then you don’t file charges, period. To cite the obvious example, you didn’t hear Mueller say, "I am exonerating President Trump on the collusion claims." He simply found insufficient evidence to establish a crime under the governing legal standards, so he declined to file charges and left it to the commentariat to sort out what it all means.
On obstruction, however, Mueller declined to apply the law to the facts. That was the only job he was hired to do. Whether he thinks the Justice Department’s decision not to charge the president is an exoneration or something less is no more relevant than what you or I think about it.
What a waste.