This came out almost a week ago over at Human Events, but I needed a few days to digest it before commenting. Excerpt:
This is a story about a legal chess match played for the highest stakes imaginable: Trump’s Presidency – and whether it would be under the cloud of an endless special counsel investigation – hinged on the result.
John Dowd, Ty Cobb, Jay Sekulow, and the rest of President Trump’s personal legal team were on one side. Mueller, Andrew Weissmann, and the Special Counsel’s office were on the other.
No judge ever ruled on who was right about the meaning of this obstruction statute. No formal decision was ever rendered.
All the same, Trump’s legal team prevailed on February 14, 2019.
That’s the day William Pelham Barr was confirmed as United States Attorney General.
So why, exactly, was the interpretation of 18 U.S.C. § 1512(c)(2) so contested?
Let’s start by looking the statute, excerpted here:
(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
Why was this so important to Mueller? Because most of the obstruction statutes couldn’t possibly apply to President Trump’s behavior, as they require that a defendant obstruct a “pending proceeding” before an agency or tribunal.
It is settled law that an FBI investigation does not constitute such a proceeding. But § 1512(c) applies to acts of obstruction done with the intent of impairing evidence for a future, potential proceeding. That made it potentially usable against the President.
“Whoever corruptly… obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].”
If taken to its extreme, it could be read to cover any act – no matter how lawful – that has the effect of impeding a federal investigation. That would include, for example, asking an FBI director to lay off an investigation, or firing an FBI director. The Mueller Report revealed that Mueller interpreted § 1512(c)(2) in just such a broad fashion.
All done? OK, let’s go on.
What this article points out, to my thinking, is how narrowly we avoided a legal coup d’état intended to remove a duly elected, sitting President. This wasn’t Watergate, after all, where there was an unambiguous, unmistakable cover-up after which President Nixon’s own party told him he had to resign. This was an utterly partisan exercise intended to undo the 2016 Presidential election, which many in the Imperial City establishment felt hadn’t gone the way it was “supposed” to go.
Here’s the conclusion:
When the June 2018 Barr memorandum became public in December, many Democrats tried to weaponize it against him. But because Barr’s memo was specific to a particular statute, and was perfectly defensible legal analysis, it was hard for the Democrats to get any traction.
In hindsight, however, it’s clear that Barr was the assassin Democrats feared.
Within six weeks of his confirmation, the Mueller probe was over.
When Mueller equivocated on obstruction in his report, Barr affirmatively determined that there was no viable obstruction charge. In a twist, Barr didn’t rely on a narrow reading of § 1512(c)(2); instead, he exploited the malleability of Mueller’s theory and determined that Trump lacked the requisite intent to commit obstruction.
At the same time, he made clear during the press conference that he didn’t agree with Mueller’s legal theories; one has to suspect he was referring to the debate over § 1512(c)(2).
In any event, Mueller and Weissman had lost the chess match. Trump and his team had won.
No Collusion. No Obstruction. No more Mueller Investigation.
Indeed. But here’s my worry: Corruption in government only grows. It is the nature of government to grow ever more intrusive, ever more corrupt, and it is in the nature of those in power to seek to retain that power. And it’s also increasingly obvious that the real power in the Imperial City is not in the hands of the elected officials with their increasingly-unhinged kabuki posturings, but in the bureaucrats that work behind the scenes.
The Mueller investigation has laid that bare, but the question remains, so what? What can be done about it? This swamp won’t be so easily drained; I’m worried that we may well already be past the point of no return.