I’m not a lawyer, but it sure looks to me like the AG has made a version of a courtroom blunder of “opening the door” to testimony their case was crafted to prevent coming into evidence. At least that was my takeaway after watching Rachel Maddow last night. Here’s my own take on why and how this has gone down, and what it might well lead to.
To start with, Billy Barr crafted a strategy of placing Special Counsel Robert Mueller in the modern legal equivalent of being “pilloried/in the stocks” and the GOP from Trump on down have been tossing the rotten fruit. Ok, so Trump and the gang have been taking potshots at Mueller long before Barr started his “comeback” (beginning with his audition memo) but Barr decided he’d found a way to use his position as (supposedly) the nations top Law Enforcement official to challenge Mueller’s reputation and even brand him as “weak.” Think about the refrain you’ve heard lately, with all the hand wringing (at best) and challenges to his courage (at worst) over Mueller not doing what prosecutors do — make a prosecution/declination decision. Why, oh why they wailed (or snarled) did Mueller refuse to “do his duty?” Well, duh! The freaking rules don’t allow it when the person on the receiving end of the decision is a sitting President. They also know from all Mueller’s decades of service he’s as by the book as a person can be and would feel bound to follow the rules regardless of his own personal feelings. Mueller embodies all the values his GOP critics only pretend to have, and even as they profess (when convenient to promote their bullshit) to have them they mock them in others – including their own when they feel a need to.
Mueller would never as they well knew “strike back” at all the criticism that was heaped upon him as he went about his work. Again, not just norms but actual rules prevented him from doing so. Still, his reputation mostly held up, and Barr knew long before he took over as AG he needed to badly wound Mueller’s professional reputation. He needed to put Mueller in a position of humiliation and keep him there as he (Barr), the WH and the rest of the GOP could “go Medievil” on Mueller. During that March 5 meeting when Mueller explained he wouldn’t make a recommendation on criminal charges and why Barr saw his chance. Or what he believed was his chance. I say that second part because the point of this piece is that Barr might wind up having the boomerang he’s thrown come back and smack him upside the head.
I’ve already written about Barr’s testimony to the Senate Judiciary Committee, and that I watched it all. It made me feel disgusted. It also made me angry to the point of rage. Both of those feelings were fairly dominant in me in the weeks leading up to Barr’s appalling performance Wednesday. That’s a combination that interferes with objective thought and recognizing important things. Fortunately there are good, smart people who are able enough to keep their head fully in the game & for that I’m thankful. Once again I find myself particularly thankful for Rachel Maddow.
Rachel Maddow’s A-block last night spent a lot of time discussing how Barr has organized a GOP effort to trash Robert Mueller for not making a traditional prosecutorial decision. She also explained what I missed — that not only did Barr ignore Mueller’s pretty clear intent for Congress to make the call on what to do next, but he has gone to great lengths to publicly criticize Mueller for “not making the call. on whether Trump had committed obstruction of justice. Barr has IMHO even gone so far at times to paint himself as a tragic figure, forced to make an important decision that according to him Mueller SHOULD have made. (Again, even though Mueller was specifically proscribed by the rules from making it!)
The point though is that Barr worked with Emmett Flood and others over at the WH including it seems Trump’s personal lawyers and perhaps even his own freaking son-in-law who left DOJ because of “ethics” but then ran over to work in the WH Counsel’s Office. Call me crazy but I’m not sure that’s what the ethics lawyers at DOJ had in mind when they issued their ruling that the guy should distance himself from his father-in-law Billy Barr. I also think this crew looped in key Congressional Republicans and the conservative pundit brigade who as I already noted have been taking “Free Shots” at Mueller for a long time. It’s sooooo easy to hit a guy who’s not allowed to hit back — conservatives live for that shit. Maddow however didn’t just explain this recent Barr crafted/led gambit to discredit Mueller. She also posed a provocative question.
Maddow, as she is wont to do kept repeating her point which is that Barr demanded that a prosecutorial decision be made; that Barr insists that if such a decision isn’t made by a prosecutor and if they don’t intend to make one then they have no business continuing an investigation or really even conducting it in the first place. Barr as we all know believes a President can’t commit a crime (she put up videos of Nixon’s if the President does it it’s not a crime” moment) at least if a Republican happens to be in Office. (No doubt that attitude along with the “Unitary Executive bullshit vanishes if a Democrat is President — as we’ve seen) Ergo (in Barr’s view) Mueller should have never investigated Trump’s obstruction of justice in the first place. Follow me here on Barr’s twisting of logic:
Barr says a President (at least if they’re Republican) can’t commit obstruction of justice (or it seems other crimes) in the performance of their duties (such as firing someone or impeding or trying to stop an investigation) even if they do so for a corrupt reason. Barr even goes so far as to say that if a President (again, at least if they’re Republican) feels he/she hasn’t done anything wrong and is therefore being “unfairly” investigated they have every right to shut down an investigation. Barr sure as hell believes (once again as long as it’s a Republican President) that no sitting President should be indicted/charged for any crimes. Put it all together and as far as Barr is concerned a President can’t be charged with any crimes (or even wrongdoing) and so no matter what they do, no matter how corrupt or flat out illegal their actions might be they can’t be charged with any crimes so they shouldn’t be investigated at all! (at least of course if said President happens to be a Republican)
Given all that, Barr has gone to considerable effort to make and promote the notion that if Mueller did in fact conduct a full investigation then he by god was obligated to make a traditional prosecution/declination decision! Since Mueller did not (and cites in some details the rules that prevented him from doing so) Barr felt obligated to step in and make the decision (since it’s a Republican President involved) and clear Trump of wrongdoing himself. But Barr has continued to criticize Mueller for not doing so!
Maddow quite reasonably asks whether since Barr is so critical of Mueller not making a decision to the point of virtually demanding he do so, is Mueller is now free to do exactly that? From where I sit that was one hell of an interesting question.
Mueller is imbued with a traditional sense of the rule of law and related norms, and took great pains in his report to explain his belief it would be unfair to any defendant (even Trump) to charge them with a crime(s) when they wouldn’t actually undergo prosecution and have the legal means to defend themselves and seek exoneration by winning at trial. That’s why for all intents and purposes Mueller tossed (or attempted to) the ball to Congress. Nothing prevents Trump from being charged and tried in less than two years if he’s beaten in November, 2020. However in the meantime Congress is the only body with the ability to consider “charging” Trump until the time comes when he is no longer President. Mueller by nature believes in the system, and would be loathe to get involved in what’s certainly a highly charged political fight. Publicly doing what Barr (and others) have attacked him for not doing, rendering a specific decision to either charge or decline to charge Trump is as political as it gets. Publicly saying either yes Trump should be charged now and tried when he’s out of office or that the evidence is all there waiting so as soon as the next President is sworn in Trump should be charged goes against every instinct and belief Mueller has.
However Maddow’s point is that Barr has been so critical of Mueller and even led a strategy to attack Mueller on this point that one could reasonably argue that Barr has demanded Mueller render his opinion/judgement on whether Trump should be charged. The really interesting question is how Mueller will respond? Billy Barr is counting on the Robert Mueller of legend, a person so steeped in traditions and norms that he will resort to some version of “I think the report speaks for itself “ — or “People should draw their own conclusions.” However Barr might well have miscalculated. By getting personal towards Muller and so pointedly repeatedly criticizing Mueller, by crafting and leading a strategy to carve a large chunk out of Mueller’s professional reputation Barr might well find this whole thing blowing up in his face — or as I said earlier get whacked by a boomerang he made himself and threw at Mueller.
I think Barr might actually be getting worried about this possibility. I for one found (at the end of Wednesday’s hearing) his blurting out the ‘Bob, what’s with the letter? Why didn’t you just pick up the phone?'” comment illustrative of Barr’s concern. Given this came after the final break, after having been hammered by Democrats on the panel and responding by going even more all-in on criticizing Mueller (with Republicans on the panel having in their own turns amplified the strategy for all to see) Barr might have started to have “Uh Oh” feelings. Barr might earlier have, in the heat of the moment had a grand old time holding himself out at Mueller’s superior and on national TV no less. Not btw just (in the moment) lording himself as Mueller’s final supervisor but also in a more general sense as a superior lawyer — but during that final break started to wonder whether he’d pushed too hard. It’s the tone of that Barr comment about calling up Mueller to (IMHO) whine about the letter. To be clear, in the hearing Barr cleared up some confusion and made it clear HE had called Mueller about it instead of that call being a follow up from Mueller. As I said in a recent diary Barr is very, very unhappy about that letter being written and sent because it was an extraordinary action on Mueller’s part. Mueller, in nice but firm legalese was saying what his inner Marine Grunt would say which is: “What the fuck are you doing Bill? You are slinging bullshit about me and my team & our work. Stop trying to spin it for your boss and let US speak for ourselves because what you’re putting out there is a pile of bullshit covered in whipped cream!”
IOW Barr knew right then and there that Mueller wasn’t just pissed, but doing something about it, & that that “something” could wind up biting him (Barr) in the ass. Which as we’ve seen most certainly happened. Still, Barr spent weeks carrying out his “Mueller didn’t have the guts to make a decision” strategy and in the heat of Wednesday’s hearing became increasingly dismissive of Muller. Circling back to Maddow’s point, has Barr inadvertently not merely given the ok for Mueller to state his opinion on the evidence but actually demanded he do so? IOW, as my title suggests did Barr “open the door?”
The more critical question is whether Mueller will walk through it. Even more importantly will he flatly state what he sure seems to suggest in his report which is that he could win a conviction against Trump with his eyes closed and his hands tied behind his back in court. Mueller has been pissed at Barr since Barr put out his “Trump was cleared by Mueller” four page PR piece. Since then Barr has led the chorus of attacks, with the chorus singing the song he (Barr) himself composed. Mueller hasn’t just been limited by professionalism and deeply ingrained values from publicly responding. He’s literally been prevented by the rules from doing so. If Barr won’t clear him to testify before Congress, according to experts including Neal Katyal who drafted the current Special Counsel Statute Mueller can simply resign his position and the Special Counsel law allows him to speak wherever he wants and whenever he wants, including in testimony on live TV to Congress — and if Muller is no longer officially on the DOJ payroll there isn’t a damned thing Barr can do about it. More to the point though is Barr’s (and others) attacks on Mueller, the clear attempt to cripple Mueller’s professional reputation by claiming he shirked his duty are surely causing Mueller to think long and hard about taking a legal two-by-four to the lot of them. Mueller stands for everything Barr and the rest of the GOP are eagerly helping Trump to tear down. I’ve heard enough former federal prosecutors with outstanding reputations and records say flat out they could not only win a conviction on what Mueller has provided but have done so with less.
I for one don’t think there’s any doubt at all Mueller feels the same way. The question is whether he will, when he gets his turn to speak up say so himself. There was a time when I don’t think he would have, and that instead he’d have gone with the “the report speaks for itself” line. Mueller is a throwback and even at some dings to his professional reputation I’m not at all sure he’d have abandoned his old-school views on what is proper and what is not. However there are two things here to consider. First is that the attacks on him have gone beyond (way beyond) the level of “dings” to full on attacks. Because of his beliefs and respect for rules and norms he hasn’t been allowed to do anything — he’s been locked in the stocks and forced to endure the rotten fruit being thrown at his head. And Mueller is the type of person who, if he believed it was in the country’s best interests to “just take it” would do so.
However, Barr started signaling from the time of his four pager released a mere two days after the report was turned in that the old rules don’t apply anymore, and if like others Mueller was hoping that once sworn in Barr would display some institutional norms he realized he’d given Barr too much credit, or consideration or whatever you want to call it. On Wednesday, Barr spent the day pretty much trashing the very thing Mueller has spent his professional life upholding and defending — the Rule of Law. IOW Mueller watched with the rest of us as Barr spent his day not only tearing chunks out of him personally, but literally throwing out any traditional notions of the Rule of Law. Just to protect Trump. Barr has made it clear he will use the full force of his office AND co-opt the entire DOJ to protect Trump no matter what the latter does. I for one can’t imagine anything short of someone physically attacking his wife or other family member that would infuriate Robert Mueller more.
I’m not quite confident enough to place a bet on it (too broke to risk losing) but I think it’s increasingly likely Mueller does actually want to publicly say “Hell yes I’d have indicted Trump if the rules would have allowed me to do so”, and Congress has the power to keep us from having to wait until January 2020 for Trump to not be President!” Or, at the very least he’d say Trump should be indicted as soon as he leaves Office. Or even just that any other person would have been indicted. Mueller’s old school instincts might cause him to put in one of those latter two forms out of deference to the Office Trump holds. Not Trump personally, but the Office itself. Maddow suggests Barr has virtually demanded Mueller publicly render his own judgement on the evidence. Or as I’ve chosen to put it, “opened the door.” With each passing day, as the attacks on him continue and as Trump keeps adding to his (long, very long) list of outrages Robert S. Mueller III will be more and more inclined to fight back. I know his avoidance of political crap & PR during his career haven’t exactly prepared him to properly assess the full dynamics of this moment in history but he’s surely got people close to him that he can trust to help him do so. They are I hope telling him the truth — that given the hits he’s taken which have been intensified via this strategy orchestrated by his “friend” Barr he has to speak up soon.
I’ll close this with a wish, a way I think would convince Mueller to go on the offensive and let the chips fall where they may. I’d like for Jim Mattis to call up Mueller and prevail on him to get together for an afternoon. Mattis would insist on a trip down the road to Quantico and more specifically the Marine Base & National Cemetery there. They could go through the cemetery and pay respects to people they know and all those they don’t who are buried there. Then they could go watch Officer Candidates undergoing the transformation from civilians into Unites States Marines. Then head over to watch newly commissioned Marine Officers undergo the process every single one has to go through before going on to whatever assignment or training they are destined for. For those who don’t know The Basic School is a grueling six month course designed to teach every single Marine Officer to be a leader of a Marine Infantry Platoon — “Every Marine a Rifleman” as we say. Then Mattis would ask Mueller to consider their own time going through the same things, as well as those in that cemetery. Then Mattis would ask Mueller to consider why and how he left his position as SecDef — with that masterfully insulting letter to Trump and that Trump was so stupid and dense it had to be explained to him that Mattis had trashed him. Mattis would then remind Mueller that even when it goes against the ingrained instinct to follow orders that Marines, including and especially those in leadership have a duty to refuse to follow unlawful orders, and even relieve a superior who acts in a manner that shows they are unfit for their command.
And finally say “Bob, I tried as long as I could to reign in the guy and keep things moving in the right direction but the point came where I had to stand up to him and resign. And more importantly let the country know I thought our President was full of shit. Don’t you think it’s time you did the same?”
Whether prompted or not, here’s hoping Mueller not only follows Mattis’ example of slamming Trump on the way back to private life but goes him one better.