For the sake of American democracy, and the public’s faith in our justice system, the full, final report produced by Special Counsel Robert Mueller must be made public. Immediately.
Sunday’s slender, four-page memo to Congress by Attorney General William Barr was wildly inadequate. Claiming that the special counsel had not found an illegal conspiracy between the Trump campaign and the Russian government, Barr provided a cursory summary of Mueller’s findings — managing to not even quote a complete sentence of the actual report.
More egregious: Barr used the same letter to slam shut a heavy door that Mueller appeared to intentionally leave open. The special counsel presented evidence for a possible charge of obstruction of justice by President Trump, writing: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
Mueller described “difficult issues” of fact and law that needed to be weighed, based on 22 months of investigation. Barr made his assessment in less than 48 hours, concluding that no such crime had been committed, because the president’s (all too public) attempts at a cover-up did not, in the end, conceal an underlying crime.
The Mueller report must be released in full. The impetus behind the special counsel statute is to enable investigations to take place outside the normal bounds of partisanship. Even in our hyper-polarized environment, Mueller’s investigation appeared insulated from the thrum of politics, gaining the trust of nearly 60 percent of Americans. It is unacceptable, then, that the only public glimpse of the special counsel’s work has been filtered through a Trump political appointee.
And Barr is not just any political appointee. In fact, he may have been picked to lead the Justice Department precisely because of his views that Trump is immune from obstruction of justice charges in the context of this particular investigation. In June 2018, five months before his appointment by president Trump to lead the DOJ, Barr submitted a memo titled simply “Mueller’s ‘Obstruction’ Theory.”
That memo is nearly five times the length of Barr’s Sunday letter to Congress. Last summer, Barr wrote that Trump’s firing of FBI Director James Comey, and his suggestion that Comey not prosecute former national security adviser Michael Flynn, were not acts of obstruction absent an underlying crime. “[T]he President’s motive in removing Comey and commenting on Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion,” Barr wrote, “[b]ecause the obstruction claim is entirely dependent on first finding collusion.” In sum, Barr concluded: “Mueller’s obstruction theory is fatally misconceived.”
In his new letter to Congress, Barr leaned on the same logic in justifying his decision not to indict Trump for obstruction: “In making this determination, we noted that the Special Counsel recognized that ‘the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.’” Barr added another sentence or two of legalese, but the Attorney General is saying, in essence, that a coverup in the absence of an underlying crime is not obstruction.
Barr’s behavior in this case raises a troubling possibility: That his appointment to head the Department of Justice, and his work in that post under color of law, is itself an act of obstruction by the president of the United States — that Trump is using his powers as the nation’s chief executive to tip the scales of justice in his own favor.
Until the Mueller report is released in full, Americans will rightly doubt the integrity of our justice system. That creeping doubt is a cancer, capable of hollowing trust in yet another core institution of our republic. Sunshine in this case is the only cure. But Barr, in his letter to Congress, indicated that he intends to shield some of Mueller’s work product from public view, citing secrecy that “protects the integrity of grand jury proceedings.”
The full publication of Mueller’s report and evidence will not satisfy everyone. Some Russiagate theorists will never be convinced that President Trump’s rise to the White House was possible in absence of a partnership with Vladimir Putin. The confounding decision by Mueller not to make a prosecutorial recommendation on the obstruction of justice charge may remain confounding, even in the light of all evidence. But the citizens of our democracy deserve the chance to struggle over these facts, honestly and evenly.
Congress has made clear its intention: By a vote of 420 to 0 the House of Representatives has called for the release of the Mueller report. A recent poll found 81 percent of the American public also want the report published in its entirety. Neal Katyal, who helped draft the regulations that govern the special counsel, wrote recently: “Absolutely nothing in the law or the regulations prevents the report from becoming public.” The health of our democracy depends on it.