When career DOJ ethics officials cleared Rosenstein to supervise Mueller's work, they DIDN'T KNOW—by Barr's own sworn admission—that they were also clearing him to decide WHETHER TO CHARGE in a case he was a witness in, as everyone thought *Mueller* would be making that decision.
1/ Barr was obligated to get a NEW ruling from career DOJ ethics officials before consulting with Rosenstein on WHETHER TO CHARGE in a case he, Rosenstein, and career DOJ ethics officials had previously believed Rosenstein *wouldn't* be the final arbiter on in any meaningful way.
2/ This is PARTICULARLY true if:
(a) Barr was going to HEAVILY rely on Rosenstein's judgment, as he says he did;
(b) Barr was going to HEAVILY cite Rosenstein's gravitas in his sworn testimony;
(c) Neither Barr nor Rosenstein were going to review ANY of the underlying case file.
3/ The result is that we DON'T KNOW if Rosenstein was even an ELIGIBLE arbiter in the obstruction case in the view of the DOJ—a *dire* concern because if he was NOT, we already know from Barr's testimony that Rosenstein's judgment therefore (ethically) poisoned the whole process.
4/ Moreover this issue—drawn out by @SenKamalaHarris—arises at a time when there's SERIOUS concern Barr shut down Mueller's probe and had unethical contacts with the White House in doing so, and that the White House therefore had foreknowledge Barr would shutter Mueller's office.
5/ This issue also arises in the context of Barr having (a) expressed views on presidential power that do not comport with DOJ standards or norms, and (b) interpreted DOJ regulations in a way that lets him CLEAR the president of any wrongdoing but not CHARGE him—a legal nonsense.
6/ How can ANY prosecutor call a charging decision ethical or legally sound if the regulations he's working under PROHIBIT indictment, but do NOT prohibit declination? Under such circumstances, it is, again, a legal nonsense to say that prosecutorial discretion was even possible.
7/ I'm not even addressing whether Barr's actions sought to or did impede potential impeachment proceedings in violation of the separation of powers enshrined in the U.S. Constitution—the point is, the legal and ethical issues surrounding Barr and Rosenstein's decision are fatal.
8/ The obstruction resolution Barr sought is a legal, political, and ethical nullity—but of *equally* grave concern is the fact that, without a comprehensive counterintelligence report acting as an adjunct to the Mueller Report, it's IMPOSSIBLE to draw any conclusion on Volume 1.
9/ The standard of proof in Volume 1 is preponderance of the evidence; the evidentiary question is if Trump is compromised and a national security threat. The idea that Mueller OR America can draw any final conclusion on Volume 1 without more counterintelligence data is farcical.
10/ Ethicists, lawyers and the media should treat the Barr/Rosenstein declination as a legal, political, and ethical nullity; as to Volume 1, they should be telling America that we STILL AWAIT the counterintelligence reports that would give the main issue of Volume 1 any meaning.
You can follow @SethAbramson.
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