Neal Katyal: ‘I think the system is working’ – how can he be so sure?

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An update to my earlier post, Congress and Americans need to hear from ‘SilentBob’.

Former U.S. Attorney Neal Katyal, who drafted the Special Counsel regulations and therefore is the expert on their purpose, intent and meaning, explains at the New York Times why Why Barr Can’t Whitewash the Mueller Report:

Many who watched Attorney General William Barr’s testimony on Wednesday before the Senate Judiciary Committee, which followed the revelation that the special counsel Robert Mueller had expressed misgivings about Mr. Barr’s characterization of his report, are despairing about the rule of law. I am not among them. I think the system is working, and inching, however slowly, toward justice.

When it comes to investigating a president, the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress. That is where this process is going, and has to go. We are in the fifth inning, and we should celebrate a system in which our own government can uncover so much evidence against a sitting president.

Some commentators have attacked the special counsel regulations as giving the attorney general the power to close a case against the president, as Mr. Barr did with the obstruction of justice investigation into Donald Trump. But the critics’ complaint here is not with the regulations but with the Constitution itself. Article II gives the executive branch control over prosecutions, so there isn’t an easy way to remove the attorney general from the process.

Instead, the idea behind the regulations was to say, “We recognize the constitutional reality that the attorney general controls the prosecution power, so what else can we do?” My colleagues and I (a group that included many career officials at the Justice Department as well as bipartisan leaders in the House and Senate) settled on two things. First, provide a mechanism to enable an independent investigation, and thereby generate public confidence in the outcome of that investigation. Second, design that mechanism so that if the attorney general interferes with the special counsel’s inquiry, that interference would be reported to Congress and ultimately become public.

The underappreciated story right now is that we’ve not only learned that it was Mr. Barr — and pointedly not Mr. Mueller — who decided to clear President Trump of the obstruction charges, but also discovered the reasoning behind Mr. Barr’s decision. The American public and Congress now have the facts and evidence before them. The sunlight the regulations sought is shining.

Mr. Barr tried to spin these facts. He hid Mr. Mueller’s complaints, which were delivered to him in writing more than a month ago, even when Congress asked in a previous hearing about complaints by members of the special counsel’s team. And the four-page letter that Mr. Barr issued in March and supposedly described the Mueller report omitted the two key factors driving the special counsel’s decision (which were hard to miss, as they were on the first two pages of the report’s volume about obstruction): First, that he could not indict a sitting president, so it would be unfair to accuse Mr. Trump of crimes even if he were guilty as sin; and second, Mr. Mueller could and would clear a sitting president, but he did not believe the facts cleared the president.

These two items came out because the special counsel regulations allowed for public release of this information (and not, as Mr. Barr testified on Wednesday, because he “overrode” the regulations to give the information to the public). The attorney general was misleading through and through, not just about the investigation, but about the special counsel regulations themselves.

Note: For some deep-dive archival reporting on the deeply corrupt William Barr during his first tenure as Attorney General for George H.W. Bush, see, Frank Snepp at The Village Voice, Bill Barr: The “Cover-Up General”, and Stephen Pizzo, Kevin Hogan and Mary Fricker at Mother Jones, MotherJones JF93: Shredded Justice, for which House Banking Committee chairman Henry Gonzalez (D-TX) sought to impeach William Barr.

It is simply inexcusable that this past history did not come up during the vetting process of William Barr in his most recent confirmation hearing. It is also beyond belief that so many U.S. Attorneys who worked with him at the time vouched for him as a “DOJ institutionalist.” He was anything but; the DOJ was in shambles at the time. It seems that everyone suffered from a major case of amnesia. For these U.S. attorneys — and some members of Congress today who were serving in Congress during this period of time — some of these scandals should still be fresh in their memories. What happened? And where was the media that covered these earlier scandals? There is simply no excuse for why someone this corrupt was ever nominated and confirmed as Attorney General. Barr is picking up right where he left off in January 1993. He should be impeached now, as he should have been back then.

What’s more, we now know about Mr. Barr’s reasoning to clear the president, which turns out to be painfully thin. When asked on Wednesday why he did so, Mr. Barr said the Department of Justice ordinarily issues “binary” decisions: indict or not indict. But Mr. Barr’s own view is that this case is anything but ordinary, because the president cannot be indicted. If Mr. Trump were an “ordinary” individual, he’d almost surely be looking down the barrel of a federal indictment right now. So how can Mr. Barr now use the “ordinary” rules playbook?

This mishmash of legal arguments is absurd. No responsible scholar who thinks a sitting president cannot be indicted also thinks an attorney general can try to truncate a process of oversight — by Congress, for example — by “pre-clearing” the president in advance. The whole idea behind the notion that a sitting president cannot be indicted is that the responsibility lies in Congress. An attorney general shouldn’t put his thumb on the scale one way or the other. That’s why Mr. Mueller’s predecessors, Kenneth Starr and Leon Jaworski, simply served the evidence up to Congress; they didn’t try to exonerate the president in advance of it.

And that brings us full circle to the special counsel regulations. We knew when we drafted them that we could have a nefarious attorney general (though, in fairness, we didn’t predict this amount of duplicity). But we also knew that the facts would ultimately be forced out into public view under the regulations. That is why the special counsel isn’t a regular Justice Department employee. The “break glass in case of emergency” option was that if the attorney general was interfering with the work of the special counsel and preventing it from becoming public, the special counsel could leave the department and testify. Mr. Mueller needs to testify and tell us whether he disagrees with Mr. Barr’s analysis and conclusions about obstruction of evidence; what he thinks about the attorney general’s reaching his decision without reviewing any of the underlying evidence; what Mr. Mueller thought of Mr. Barr’s characterization of their reported disagreements; whether there were other disagreements that have not been reported; and whether Mr. Mueller’s knowledge of what Mr. Barr has done leads him to conclude that the attorney general must recuse himself from the continuing Trump investigations.

Mr. Barr’s deeply evasive testimony on Wednesday necessitates and tees up a full investigation in Congress. Those who say Congress shouldn’t do so because surveys show that the American public is not in favor of an impeachment inquiry must take into account the fact that the American people have been misled by Attorney General Barr’s characterizations of the report and its conclusions. These surveys are therefore not surprising. But there is no more sacred duty for Congress than getting to the bottom of whether our president has taken care that the laws of this country have been faithfully executed.

I am much more skeptical than Neal that the Special Counsel regulations he drafted are not simply being thrown out along with the rule of law by this lawless administration. If and when Robert Mueller testifies, we may finally learn the depth and scope of their ethical and moral depravity.