Unpacking the Barr Letter re Mueller ~ Rosenzweig // Lawfare - Brookings Institution

Paul Rosenzweig carefully analyzes the ambiguities in Attorney General Barr's letter on the still secret Mueller report which reportedly concluded that the Trump campaign did not conspire with the Russian government to steal data and interfere in the 2016 presidential election.

The second aspect is that despite conflicting evidence Mueller decided not to charge Trump with obstruction of justice.  The key factors are likely difficulties of proof of intent (liars lying), and adherence to Justice Department policy not to charge if there is another remedy - here impeachment by the U.S. House of Representatives. - gwc
Unpacking the Barr Letter re Mueller ~ Rosenzweig  Lawfare

by Paul Rosenzweig (former Deputy Assistant Secretary for Policy in the Department of Homeland Security. He is a Professorial Lecturer in Law at George Washington University and a Board Member of the Journal of National Security Law and Policy.)

On March 24, Attorney General William Barr sent a letter to Congress that summarized the “principal conclusions” of the report filed the previous week by Special Counsel Robert Mueller. The first of those conclusions—that the special counsel “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities”—has been widely seen as a vindication of President Trump’s claim of “no collusion.” There are a few ambiguities, as my Lawfare colleague Robert Litt has pointed out, but in the main this part of Barr’s summary seems fairly definitive.

But Barr’s letter is far more nuanced (dare I say, unclear?) in its description of Mueller’s investigation into obstruction of justice, leaving some mysteries that need to be unpacked.

Traditional Prosecutorial Judgment

The Barr letter says that Mueller “considered whether to evaluate the [obstruction] conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.” What does this mean?

Well, first and foremost it is worth understanding what the Justice Department’s traditional standards are. They can be found in the Principles of Federal Prosecution, a manual created by the department to guide its employees in the exercise of their discretion. As the principles put it in § 9-27.220, the

attorney for the government should commence or recommend federal prosecution if he/she believes that the person’'s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless (1) the prosecution would serve no substantial federal interest; (2) the person is subject to effective prosecution in another jurisdiction; or (3) there exists an adequate non-criminal alternative to prosecution.

So, a traditional evaluation begins with the obvious question: Can the government prove the case in court and obtain and sustain a conviction?