SPEECHLESS IN ST. BARTHS

When the Barr report on Mueller's work was issued, I was struck dumb. 

I have recovered.

I was highly suspicious of Barr from the git-go. This man had long ago attacked the Mueller investigation in what was seen by many as a craven petition for appointment to the post of Attorney General. He was successful then, and perhaps, just perhaps, is successful now.

So I read Barr's letter with a jaundiced eye. Three things jumped out at the first quick read, persuading me this Attorney General was as dishonest as the man who appointed him.

First, while the AG's letter supplies lots of details on the number of witnesses interviewed, subpoenas served, etc., and does report that Mueller found the Russians interfered in our election, it never once completes the sentence: Russia interfered in our election in order to elect Donald Trump. Hmm, why that omission? 

Second, it is on the obstruction issue that Barr really tipped his hand.  He referred to the consideration of Trump's conduct that Mueller found to have raised "obstruction-of-justice concerns." Mueller makes it clear that while the evidence leads him to "not conclude that the President committed a crime, [the evidence] also does not exonerate him."  But Barr then takes over and does exonerate the President, applying "principles of federal prosecution." He tells us his decision is not based on the DOJ policy of not indicting a sitting president, but Barr does not tell us what are the "principles" that do lead to his "Not Guilty" verdict.  But he couldn't help himself, and revealed a big tell: he twice reminded us that "most" of Trump's actions that make up part of the evidence of obstruction "have been the subject of public reporting," and "took place in public view."

Now that is a familiar refrain. It was a constant Giuliani drumbeat: Trump couldn't be guilty of obstruction because his conspiratorial efforts to obstruct justice were done publicly.

I can't help myself. Been there before. See my blog dated August 2, 2018, where I wrote:

"Defense Level 9. Rudy tells the TV audience that Trump is not guilty of obstruction of justice because his allegedly obstructive statements and conduct were public. To be guilty of criminal obstruction, says Rudy, you need to do the deed secretly! That may be the single most ridiculous thing Rudy has ever said in his life. Even in his addled state, he must know that is false. He knows it is false because no lawyer and few other sentient adults could fail to grasp the illogical nature of the claim. He is saying that if two people conspired to burn down the White House, but they did on an open Facebook account, or Twitter, or YouTube, it would not be criminal because the conspiracy was open to public view. Or if a terrorist publicly threatened to kill a physician if she performed a legal abortion, that is not a crime because it is "pasteurized" by the lack of secrecy.

And oh yeah, the settled law makes clear that Rudy is full of shit, because other defendants have made that claim and the courts, including the Second Circuit, have said the claim lacks merit."

The third point that leapt off the page was the most revealing.  Barr came to the remarkable conclusion that none of Trump's potentially obstructive conduct "had a nexus to a pending or contemplated proceeding and were done with a corrupt intent." Huh? Mueller was not engaged in a grand jury investigation that led to  three-score indictments and a fistful of convictions of the President's gang? And the long list of Trump's obstructive conduct, starting with first asking Comey to let Flynn off, then firing him because of the "Russia thing," wasn't done with "corrupt intent" because, Barr says: "the evidence does not establish that the President was involved an underlying crime related to the Russian election interference" and that "bears upon the President's intent with respect to obstruction."

That is not only a flagrant misstatement of the law, it is logically absurd.

The obstruction statute makes it a crime to "corruptly... endeavor to influence, obstruct, or impede the due administration of justice."

Nothing in that statute says anything about the prosecution's need to plead or prove an "underlying crime." Nothing. To double check my view, I queried several former Assistant United States Attorneys on this subject. They unanimously adopted the opinion that Barr's statement referring to the lack of an "underlying crime" ranged from "ridiculous" to just plain "bullshit."

Martha Stewart, who did time in federal prison for obstruction, with no underlying crime, should sue.

For my final comment on this point, please look at the twisted logic: A person suspected of a crime effectively obstructs justice and thereby prevents the prosecution from getting the evidence necessary to prove the crime beyond a reasonable doubt. Therefore he goes free: No provable underlying crime, therefore no obstruction. This is the stuff for the likes of Mario Puzo and Linda Fairstein, not for our real-life democracy.

Shame on us. We elected this President.

A bientot!

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