It is outrageous that Mr. Barr acted so brazenly in the face of this framework. The point of requiring a special counsel was to provide for an independent determination of any potential criminal wrongdoing by Mr. Trump. But the political appointees in his Justice Department took what was the most important part of that inquiry — the decision of whether he committed crimes — and grabbed it for themselves. This was a fundamental betrayal of the special counsel guidelines not for some principle but because it protected their boss, Mr. Trump. It is the precise problem that the regulations were designed to avoid and why the regulations give the counsel “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States attorney.”
Mr. Mueller demurred in making that determination because of a longstanding policy against indicting sitting presidents, reasoning that if he could not formally indict, he then could not say whether Mr. Trump committed crimes. Reasonable minds can disagree with Mr. Mueller’s determination, but the key here is that Mr. Barr thought such a determination could be made.
But instead of doing what the regulations contemplated — namely, tell Mr. Mueller he disagreed and ask him to make that bottom-line determination — Mr. Barr left that intricate determination to two political appointees. He did this in the teeth of a set of regulations that required him to report to Congress if he disagreed with the counsel. Mr. Barr never made such a report and instead, until last week, the memo remained unavailable to the public; a Federal District Court judge recently called the Justice Department’s explanations to keep it secret “disingenuous,” as well as “misleading and incomplete.”
This is a key concern, because America desperately needs an effective system to investigate high-level executive branch wrongdoing. Whether it is a second Trump administration incident or a Biden administration scandal, somewhere, sometime, the executive branch is going to need to investigate itself.
Some people have suggested that we might revisit something like the Independent Counsel Act of 1978, which was structured to mix functions between an outsider and an inside attorney general. But in its actual execution — like the Starr investigation during the Bill Clinton years — it was even worse than the special counsel regulations. By fragmenting decision making, that act allowed the attorney general to blame Congress, for Congress to blame the attorney general, and for the independent counsel to blame both of them, for any controversial prosecutorial steps.
Some people have pointed out that, as Mr. Mueller clearly believed, current policy does not permit the indictment of a sitting president. But that is a flaw not of the special counsel regulations but rather of Department of Justice rules that go back to (not surprisingly) the Nixon administration. I think those rules go too far and that indicting sitting presidents is permissible, even if they may not be tried until they leave office. Still, in a world where a sitting presidents cannot be indicted (or tried) until they leave office, there is a need for a functioning apparatus to allow for the investigation and bottom-line criminality determinations to be made, both to tee up a possible criminal trial and for possible impeachment proceedings.
This content was originally published here.