The Volokh Conspiracy
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A Question Barr Flubbed Badly
How could Barr have allowed Deputy AG Rosenstein to participate in evaluating an obstruction-of-justice case against the President when Rosenstein was a key participant in the possibly obstructive events, and would be a witness if a charge were brought?
There's been an enormous amount of ink, digital and otherwise, spilled over AG Barr's testimony last week (was it really just last week?!)before the Senate Judiciary Committee, and the question of whether he intentionally misled the Committee (and/or the public) by his statements and actions in connection with the Mueller Report or even, perhaps, committed perjury or some other impeachable offense.
One issue that popped up during the hearing, though, hasn't received the attention I believe it deserves.
Mueller, as everyone knows by now, chose not to make a charging decision - one way or the other - in regard to a possible obstruction-of-justice charge against the President because "a federal criminal accusation against a sitting President would place burdens on the President's capacity to govern and potentially preempt constitutional processes for addressing presidential misconduct," (Mueller Report, Vol II p. 1) and because of "concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor's accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice." (Id., p. 2)
Barr, of course, went on to make such a decision:
After reviewing the Special Counsel's Report on these [obstruction of justice] issues, . . . Deputy Attorney General Rod Rosenstein and I have concluded that the evidence . . . is not sufficient to establish that the President committed an obstruction-of-justice offense … without regard to the constitutional considerations that surround the indictment and criminal prosecution of a sitting President." [Barr's March 24 Letter to Congress, p. 3, emphasis added]
As Sen. Harris (D-CA) pointed out during her questioning (after having wrung from Barr an admission that he had not looked at any of the underlying evidence before making his charging decision), one example of possibly obstructive conduct by the President involved the "events leading up to and surrounding the termination of FBI Director Comey in March 2017" - events analyzed in great detail in the Mueller Report (Vol. II pp. 62-77). Deputy AG Rosenstein was, as the Report makes clear, a key participant in those events, meeting with the President and/or senior Administration officials on numerous occasions to discuss Comey's termination (as well as authoring the memo that was initially used by Trump to justify Comey's firing).
Rosenstein, therefore, would likely be an important witness if there were an obstruction-of-justice charge brought against the President. How could Barr have allowed Rosenstein to participate in a charging decision in a case in which he would potentially be a witness?!?
Here's the colloquy between Harris and Barr on this point:
HARRIS:
[Y]ou said that you consulted with [Deputy Attorney General] Rosenstein constantly with respect to the special counsel's investigation and report. But Deputy Attorney General Rosenstein is also a key witness in the firing of FBI director Comey. Did you consult with DOJ ethics officials before you enlisted Rod Rosenstein to participate in a charging decision for an investigation the subject of which he is also a witness?BARR:
My understanding was that he had been cleared already to participate in it when he took over the investigation.HARRIS:
You don't know whether he's been cleared of a conflict of interest?BARR:
He wouldn't be participating if there was a conflict.HARRIS:
So you are saying that it did not need to be reviewed by the career ethics officials in your office?BARR:
I believe--I believe it was reviewed and I would also point out--HARRIS:
And what was the finding?BARR:
--this seems to be a bit of a flip-flop because when the president supporters were challenging Rosenstein--HARRIS:
Sir, the flip-flop I think in this case is that you are not answering the question directly. Did the ethics officials in your office in the Department of Justice review the appropriateness of Rod Rosenstein being a part of making a charging decision on an investigation which he is also a witness in?BARR:
As I said my understanding was, he had been cleared before I arrived.HARRIS:
And--and the findings of whether or not the case would be charged on obstruction of justice? He had been cleared on that?BARR:
He was the acting attorney general on the Mueller investigation.HARRIS:
Had he been cleared . . .BARR:
I am informed that before I arrived, he had been cleared by the ethics officials.HARRIS:
Of what?BARR:
Serving as acting attorney general in the Mueller case.HARRIS:
How about making a charging decision on obstruction of justice, that is the underlying offenses which include him as a witness?BARR:
That's what the acting attorney general's job is.HARRIS:
To be a witness and to make the decision about being a prosecutor?BARR:
Well, no, but to make charging decisions.
Barr was pretty obviously unprepared for this line of questioning, and his answers were not very persuasive (to put it mildly). I'm no expert in prosecutorial ethics, but it doesn't seem too complicated: prosecutors should recuse themselves from participating in cases (including participating in the decision about whether or not to charge someone with a crime) in which they might reasonably expect to be called to testify as a witness. No?
Barr's defense - that Rosenstein had "already been cleared" to serve as Acting AG in connection with the Mueller investigation - is laughably inadequate. At the time that Rosenstein may have been cleared to serve as Acting AG - in Feb. 2017, when AG Jeff Sessions recused himself from overseeing Mueller's probe - there was no obstruction-of-justice investigation underway, and Rosenstein had not participated in any events that could be relevant to such an investigation and to such a charge; the possibly obstructive conduct in connection with the firing of FBI Director Comey took place a month later, in March 2017. The idea that the earlier clearance somehow carried over to cover Rosenstein in connection with possibly obstructive conduct that had not yet taken place is absurd on its face.
It's hardly the most egregious example of misconduct that has emerged from Trump's White House and the other institutions of the Executive Branch. But one does wonder: How could Barr, undeniably a smart guy and an outstanding lawyer - have blown it on this one? His reputation has suffered badly as a result of his recent conduct and testimony; on this one, though, doesn't he owe us an explanation (or an apology)?
