Teri Kanefield+ Your Authors @Teri_Kanefield Author, lawyer (UC Berkeley) My threads are here: terikanefield-blog.com/ NBC News Opinion contributor Impeachment notes: impeachment-trump.com/ Apr. 20, 2019 4 min read + Your Authors

(Thread) Reading The Mueller Report VI:
Barr v. Mueller

Part I begins here:

I wasn’t planning to write about Barr or anything extraneous to the Mueller Report as I march through my reading and analysis . . .

1/ But then I read Vol II (Obstruction) pages 1-2, and I have no choice.

I believe these pages of the report can only be read in a wider context.

Shortly after Barr issued his “summary,” I wrote a thread entitled the “Constitutional Showdown."

2/ In that thread, I explained that we were about to enter a showdown over who gets to decide the guilt of the president: Barr (the executive branch) or Congress.

The fight between two branches of government (executive and legislative) could end up being decided in the courts.

3/ It’s been obvious for a while that Barr (like Trump) wants the decision to be up to the executive branch. Of course! That allows Trump to appoint the person who decides his guilt.

The Constitution clearly gives the powers of impeaching and removing a president to Congress.

4/ Here is what didn’t expect—and what I am stunned to find in the Mueller Report: Mueller sides with Congress against Barr.

At the same time, Mueller gives his answer to the question everyone has been asking for two years:

Can a sitting president be indicted?

5/ Mueller says no. Congress decides.

What follows is a summary of Vol. II, pages 1-2, with a quotation from page 8.

I will let Mueller speak. All quotations and summaries are from these pages. I urge you to read the pages yourselves.
[My editorializing in brackets.]

6/ Ordinarily [says Mueller] a prosecutor makes a “binary” decision whether to prosecute, or not. (Vol. II, p. 1)

Mueller “determined not” to make a traditional prosecutorial judgment for two reasons. (Vol. II, p. 1)

7/ First, the DOJ Office of Legal Counsel issued an opinion that “the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions" . . .

8/ . . . and this would violate "the constitutional separation of powers.” (Vol. II, p. 1)

Thus, secondly, Mueller determined that indicting a sitting President would “potentially preempt constitutional processes for addressing presidential misconduct.” (Vol. II, p. 1)

9/ However while DOJ Opinion is that a president may not be prosecuted, it is permissible to investigate a sitting president. (Vol. II, p. 1)

Moreover, a president does not have immunity after he leaves office. (Vol. II, p. 1)

10/ If individuals other than the President committed an obstruction offense, they may be prosecuted at this time. (Vol. II, p. 1)

11/ Mueller elected to conduct “a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” (Vol. II, p. 2)

12/ However, SC decided “not to apply an approach that could potentially result in a judgment” that the President committed crimes. (Vol. II, p. 2)


13/ . . . because “fairness concerns” counseled against determining that the president committed crimes “when no charges can be brought.” (Vol. II, p. 2)

People accused of crimes by a prosecutor have the constitutional right to a “speedy and public trial.” (Vol. II, p. 2)

14/ Accusing the president when he could not defend himself in court, as is every person’s constitutional right, would be unfair. (Vol. II, p. 2)

Similarly, a sealed indictment [held until the president leaves office] won’t work because . . .

15/ It would be hard to preserve the secrecy and if it became public, it would imperil the president’s ability to govern [because he can’t clear himself in a fair trial and he'd be under a cloud of stigma]. (Vol. II, p. 2)

16/ Similarly [says Mueller] courts have found it unfair for a person to be an “unnamed co-conspirator.” (Vol. II, p. 2, fn 2.)

[The idea is the same: The person stands accused, but cannot defend himself.]

17/ Mueller writes: “if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.” (Vol. II, p. 2)

18/ Mueller then says: “The evidence we obtained about the President’s actions and intents present difficult issues that prevent us from conclusively determining that no criminal conduct occurred.” (Vol. II, p. 2)

19/ “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.” (Vol. II, p. 2)

Then on page 8 of Vol. II, Mueller says:

20/ “The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.”

21/ [IOW Congress decides if the President is guilty; otherwise, there are not checks and balances, and a person can put himself above the law.]

Mueller thus concluded that under the Constitution, Congress—not the DOJ— decides whether a President committed crimes.

22/ Consider where we would be if the GOP still held the House.

I rarely speculate on what I think happened, so indulge me.
Hypothesis: Barr issued his summary filled with lies fully believing he could bury the report.
Then Mueller/Mueller team said, “Oh, no you won’t.”

23/ Remember those weird leaks? I suspect something happened backstage.

So Barr released this extremely damaging report to the public, and Trump is having meltdowns.

End Part VI.

You can read all VI installments of my Mueller Report analysis on my blog:

You can follow @Teri_Kanefield.


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