The Special Counsel’s Structural Dilemma

By Francis Northwood (PO ’21)

When a president does something very wrong, a special counsel is often tasked with an investigation. This was the case with Watergate, the Iran-Contra Affair, and Whitewater. However, the special counsel is appointed by the Attorney General, which gives it strange status. It is controlled by the executive branch, but at the same time its role is to investigate the executive branch. So, the executive branch is transitively in charge of investigating in itself. This fact forces upon the special counsel a special burden: it must remain apolitical. If it were to become a political entity, then the legitimacy of the executive branch under investigation would become further strained.

Given the apolitical status of the special counsel, the recent news that Trump was exonerated on obstruction of justice charges is very confusing. On Sunday, Bill Barr, the current Attorney General, submitted his summary of Robert Mueller’s Special Counsel report to Congress. The report, according to Barr, can be separated into three parts:

  1. Russia interfered in the 2016 election
  2. Donald Trump and his campaign did not collude with the Russians
  3. There is no conclusion on whether or not Trump obstructed justice

On part three, Bill Barr and Deputy Attorney General Rod Rosenstein decided to make their own assertion in place of Robert Mueller’s indecision. They concluded, based upon a report not made publicly available, that Trump did not obstruct justice.

This raises several issues. First, Barr and Rosenstein are inherently political figures—appointed by the POTUS—and are decidedly injecting their opinions into what was meant to be an apolitical report. Second, if Mueller—the former head of the FBI who had spent 22 months on the investigation—could not come up with an answer, how could Barr and Rosenstein do so given the same evidence?

Bill Barr has a controversial history around executive power. In a memo before being appointed Attorney General, he described in detail that the burden for a President to have obstructed justice necessitates that the President would have had to commit the crime he was “obstructing” in the first place. As in, since collusion could not be found within the Russia investigation, it should also be said that Trump did not obstruct justice.

The special counsel investigation ended up indicting 34 people, including the President’s fixer, Michael Cohen, and former campaign manager, Paul Manafort. While these crimes were not colluding with Russia, they still somewhat involved the President. In fact, Cohen claimed that Trump was involved in the campaign finance violations that Cohen was charged with in the first place. So, yes, Trump may not have colluded with Russia, but if the Manafort and Cohen charges fell under the purview of the Special Counsel Investigation, then it seems that Trump could have obstructed those crimes (according to Barr’s original logic). Barr’s report does not address this.

Even if Barr’s original premise is false, that Trump did not need to be found as colluding with the Russians, did Trump still obstruct justice? Barr said that most of what was suspected of being obstruction “took place in public view”. This is a strange assertion—if Barr is right, the President’s willingness to be public about obstruction would absolve him of obstructing justice. To think on similar cases, had Nixon been public about his obstruction, should he have not been impeached?

While Trump’s opponents held Mueller as the paragon of prosecutorial integrity, it is extremely rare for a prosecutor to refuse to make this decision. A prosecutor’s role is in many ways to make a conclusive decision. However, two things are clear: the Special Counsel Investigation lasted two years and could not find an answer to obstruction; and the Attorney General and Deputy Attorney General made their decision in less than a week, on largely political grounds.

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