I am not a fan of Donald Trump but I am happy — almost ecstatic — to report that the president is not a Russian agent. That’s the good news in Attorney General William Barr’s four-page letter to Congress about special counsel Robert Mueller’s report.
Unfortunately, the letter makes clear that the Russians considered Donald Trump to be what used to be known as a “useful idiot,” someone who would unknowingly advance Russian interests with no need for any sort of direct control. Barr’s letter confirms again that the Russians were all in for Trump and notes that they had two major operations devoted to influencing the 2016 election in his favor: Hacking various computers and widely distributing stolen e-mails that would damage the Clinton campaign, and “multiple offers from Russian-affiliated individuals to assist the Trump campaign.”
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Less reassuring is how the Mueller report deals with whether or not Trump is guilty of obstruction of justice. Mueller decided to punt and, rather than draw his own conclusion, he laid out the evidence and invited the attorney general to make the final call. Barr, in his letter, said he concluded the evidence was insufficient to establish that the president committed “an obstruction of justice offense.”
This, I’m afraid, is where we are going to have a problem. I can absolutely guarantee that Congress, especially the House, is going to demand to see every single comma of at least this section of the report. Barr’s conclusion simply isn’t good enough. Especially when, somewhat disturbingly, Barr observes that “many of [Trump’s actions] took place in public view.” This, of course, raises the question of what actions took place out of public view that we don’t know about yet.
A constitutional battle is coming
In the coming months, there is going to be a constitutional battle royal over making the report, especially this section, public. Barr, as he must, will not voluntarily release portions of the report that are required to remain confidential under “applicable law, regulations and Departmental policies.” Barr is also very intent on scrubbing information from the report that has been obtained through a grand jury.
Unlike Barr, however, Congress can ignore all of these considerations. Congress is a separate, co-equal branch of government and both the House and Senate have their own subpoena powers and a constitutionally-mandated duty of oversight. If Congress wants to press the issue, its subpoenas cannot be avoided by appeals to Justice Department regulations and policies or even grand jury secrecy. Congress even has an inherent contempt power that would allow the House to order its Sergeant-at-Arms to arrest and incarcerate anyone refusing to honor a subpoena issued by a House committee.
This power hasn’t been used since 1934 but it’s available should Congress decide to flex its muscles. In summary, if Congress decides to fully exercise its subpoena power, there are very limited grounds on which Barr can refuse to produce the full report and even fewer grounds on which Mueller could resist a subpoena commanding him to testify before Congress. Let’s all hope that it doesn’t come to that.
What Barr’s letter leaves out is also important
Finally, and, perhaps, most ominously, there’s what Barr’s letter doesn’t say. He confirms that there are no further indictments pending and that there are no sealed indictments currently filed. But he also observes that there are “other ongoing matters, including those that the special counsel has referred to other offices.” In other words, while Mueller isn’t planning on filing any other indictments himself, that doesn’t mean that other indictments from other offices aren’t still in the works.
This makes a good deal of sense as Mueller had a limited mandate to investigate matters arising out of Russian efforts to influence the 2016 election. We know he’s already sought assistance from the Southern District of New York with respect to Michael Cohen and it now appears he’s passed off other cases as well. So there may well be more to come. At the very least, we know that there are likely potential cases pending against “Individual 1” and other people in the Trump organization for felony campaign finance violations.
So please do not remove your seat belt until the ride has come to a complete stop.
Chris Truax, an appellate lawyer in San Diego, is on the legal advisory board of Republicans for the Rule of Law.