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Why the Barr/Trump ‘President Can’t Obstruct Justice Without a Crime’ Precedent Is Very Wrong

So, as I have been warning for quite some time, it turns out that, at least according to Attorney General Bill Barr’s summary of Robert Mueller’s conclusions, President Donald Trump is not a “Manchurian Candidate,” Mueller is not James Bond, and Trump is not going to be removed from office, at least not in his first term.

Putting aside for now the many issues related to how much of the news media bought into a false narrative of Trump “collusion” with Russia and held onto it (partly because Mueller did nothing at all to tamp it down) long after there were clearly major problems with the theory, there was one surprising element of yesterday’s big reveal which is worthy of immediate analysis. This is the decision by AG Barr to effectively veto Mueller’s case that Trump had obstructed justice in the Russia investigation, and to instead just cryptically refer to the president as not having been exonerated on that issue.

Writers at both Mediaite and Law & Crime have already posted several good pieces on the many problems with Barr’s decision, which he claims had nothing to do with the debate over whether a sitting president can even be indicted. Here is a summary of those issues:

  • The evidence that Trump attempted to obstruct justice is voluminous, and includes the firing of James Comey, constantly calling the Russia investigation a “witch hunt,” dangling pardons for key targets, influencing witnesses, essentially tampering with the un-sequestered jury in the Paul Manafort trial, and refusing, after promising to do so, an interview with Mueller.
  • Barr has a conflict of interest because he had proactively written in favor of Trump on this very issue before the president, purely by coincidence, selected him for the job, after firing AG Jeff Sessions specifically because he recused himself from the Russia probe.
  • Barr made his decision in an extremely short amount of time and without providing any of the underlying evidence to the public, or even to Congress.
  • It is very possible that Mueller did not intend or anticipate that Barr would even be making such a decision, rather than Congress within the Impeachment process.
  • Barr’s reliance on the concept that Trump’s ill “intent” could not be reasonably ascertained because there was no “collusion” to obstruct.
  • Barr’s decision appears to set a precedent that it would now be nearly impossible for a sitting president to obstruct justice (something for which Bill Clinton was impeached without an underlying crime) unless there was a provable serious crime attached to that obstruction.

In my view, there is one extremely significant element of this that nearly everyone seems to be missing. It deals with the bizarre premise that obstruction only “counts” if there is a serious crime connected to it, which is totally irrational, especially for a president of the United States.

This absurdity can be illustrated in at least two different directions. The first is that the office of presidency is unique in its powers in ways which makes its holder’s ability to obstruct an investigation related to themselves far more prodigious than anyone else on the planet.

For instance, a president, through their pardon power, literally has the ability to absolve anyone of a federal crime, and also essentially has the authority to hire or fire almost anyone in the U.S. government (like, say, an FBI director who was in charge of an investigation of them). Then there is a president’s ability to pressure witnesses, prosecutors and jurors simply through the use of their bully pulpit (Twitter feed), which Trump has done extensively during the Russia probe.

The second angle of what makes the president very unusual in an obstruction investigation is that, since they are inherently the ultimate political animal, especially in their first term, there are many nefarious reasons which they may have to obstruct an investigation that have nothing to do with shielding a serious crime. For Trump, the best current interpretation of events, is that he was obstructing the Russia investigation not to hide “collusion’ (which I am now convinced he strategically set as the “goalposts” for Mueller, knowing that they couldn’t be reached), but rather to cover up that he had been outrageously engaged in trying to build a Trump Tower in Moscow during the 2016 campaign, and lying about it.

A normal human would never risk breaking the law by obstructing justice to hide that they lied about a seemingly legal real estate project. However, when the person doing so is a first-term president with every intent to run for reelection, assuming and proving their “ill intent” is, at least for a thinking person, extraordinarily easy to do.

It appears that Barr simultaneously gifted Trump with an extremely high burden of proof in line with him being the president, while also effectively treating him as a child who had no idea what he was doing. And therefore, because there was no crime to hide, that it must be presumed that he had no ill-intent.

At best, this is exceedingly flawed and dangerous thinking. At worst, it could be an indication that Barr has essentially concocted new law in a cover-up effort to protect his boss, and kill politically what should be a clearly impeachable offense.

If this precedent is allowed to stand (meaning there aren’t even impeachment proceedings related to Mueller’s obstruction allegations), then Barr and Trump will have effectively made it so any future president could do virtually whatever they want to disrupt a politically problematic investigation, just as long as there was no provable serious crime to go along with it. That’s not at all what our Founding Fathers intended when they created the presidency, that’s the making of monarchy, very similar to the one against which they fought a rather bloody war for independence.

John Ziegler is a senior columnist for Mediaite. He hosts a weekly podcast focusing on news media issues and is documentary filmmaker. You can follow him on Twitter at @ZigManFreud  or email him at johnz@mediaite.com

[Photo by Win McNamee/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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