The special counsel abdicated on obstruction to avoid a confrontation with the Justice Department and get his evidence to Congress.

Why mention the OLC guidance at all?

That is the question for Bob Mueller, left hanging by the statement his office jointly issued with Justice Department flacks on Wednesday (5/22/19), clarifying (as it were) remarks he had made hours earlier at his parting-shot press conference.

At issue is Mueller’s decision to punt on the question of whether President Trump should be indicted for obstruction of justice. In his startling remarks, Mueller sought to justify himself by citing instruction from the Justice Department’s Office of Legal Counsel. The longstanding OLC opinion, an outgrowth of Nixon- and Clinton-era scandals, holds that a sitting president may not be indicted. The two press offices were struggling to reconcile (a) Mueller’s pointed reliance on this OLC guidance at the presser with (b) his prior disclaimers of such reliance.

According to Attorney General Bill Barr, in a meeting over two weeks before Mueller submitted his final report, the special counsel emphatically denied that his refusal to render a prosecutorial judgment on obstruction hinged on the OLC guidance. Naturally, in their continuing quest to frame Barr as the most diabolical villain since Lex Luthor, the media-Democrat complex insisted that the AG must be lying.

This is what derangement will do to you. I do not think Mueller’s contradictory assertions are that hard to figure out. But if you were inclined to blame sleight of hand, the culprit would be Mueller. You’ll notice that when we finally heard from him on Wednesday, he lauded Barr’s good faith, never claiming that the AG had misrepresented him. Moreover, the conversation between them on the OLC guidance was not a one-on-one affair. There were other people in the room when Mueller denied that the OLC guidance was his rationale for abdicating.

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For most of his investigation, Mueller was "supervised” by acting AG Rod Rosenstein, who did not comply with special-counsel regulations in appointing him, and who promised Democrats that he would be effectively independent. As long as the studiously passive Rosenstein was at the helm, the staff-driven Mueller was free to investigate under his loose, envelope-pushing obstruction theory. Once Barr became AG, however, it was clear that Mueller’s theory was not going to fly.

So, let’s play out the alternative scenario.

Let’s say that, having convinced himself he had a strong obstruction case, Mueller decided to recommend that the president be charged. That would have forced a confrontation over the issue that has been sidestepped: What are the correct standards for evaluating an obstruction allegation against a president? There would have been a brawl at Main Justice. The report would have been held up while the matter was debated.

More to the point, Mueller and such top staffers as Andrew Weissmann and Michael Dreeben, who have operated at the top echelon of the Justice Department, would have known that the attorney general would win such a battle ten times out of ten. That goes double for an AG such as Barr, a highly regarded legal thinker who, besides now being AG twice, ran the OLC in the Bush 41 administration. He was not going to be intimidated or bulldozed by Mueller’s staff.

Remember: Mueller’s staff is looking at this as if they were congressional impeachment counsel. Their objective is to get their evidence to Congress bearing something close to the stamp of an indictable felonies.

Posted by: Timothy Birdnow at 08:50 PM | No Comments | Add Comment
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