Democrats are voicing growing concerns that Robert Mueller’s decision to avoid judgment on whether President Trump obstructed justice could engender a long-term expansion of executive powers.
While the debate surrounding Mueller’s investigation has focused almost exclusively on how the findings might affect Trump, Democrats are sounding alarm bells that inaction on the obstruction allegations could usher in a new era of executive impunity — a shift empowering future presidents to flout the law for years to come.
“You are seeing a move toward expanding executive powers,” said Rep. Anthony Brown (D-Md.), who is joining Democratic leaders in calling for the Department of Justice (DOJ) to release the full text of the special counsel’s report.
{mosads}”Congress needs to do more investigation, particularly on the obstruction issue,” he continued. “And our inability to get that [information] simply empowers not only this president but future presidents to be bold in their disrespect for the law.”
Rep. Gerry Connolly (D-Va.) said Mueller, in choosing “to punt” on the obstruction question, has likely shifted the balance of powers toward the executive branch — at least in the near term.
“He had the opportunity to make a decision about obstruction, and he chose to punt,” Connolly said.
“And so we — at Mueller’s own hand here — we have seen further accretion of executive power, when he could have helped fortify constraints, checks and balances,” he added. “And I think that’s an almost tragic missed opportunity because he pulled his punches.”
Though a part of the executive branch, the Justice Department has for decades functioned with de facto autonomy, conducting investigations largely independent of the president and his White House orbit. That independence was only reinforced following the Watergate scandal of the 1970s, which saw President Nixon acting to undermine an investigation into crimes surrounding his reelection campaign — an episode that ultimately led to Nixon’s resignation.
Trump bucked that tradition in dramatic fashion in 2017 when he fired then-FBI Director James Comey, who at the time was leading an investigation into Russian meddling in the 2016 election and whether members of Trump’s campaign had coordinated with Moscow to influence the result.
Democrats howled that Comey’s firing marked a clear case of the president obstructing justice, and Mueller’s team, picking up where Comey left off, examined that question — to no conclusion.
In a summary of Mueller’s “principal conclusions” released last Sunday, Attorney General William Barr asserted that while the report does not recommend obstruction charges against the president, “it also does not exonerate him” — language pulled directly from Mueller’s submission. In the same letter, Barr said he’d examined the issue himself and found the evidence was “not sufficient to establish that the President committed an obstruction-of-justice offense.”
Democrats are decidedly unconvinced, and many say the threat of shifting powers is rooted not in Mueller’s decision to defer on obstruction but in Barr’s subsequent move to clear Trump of any related charges.
Rep. Jamie Raskin (D-Md.), a former constitutional law professor, characterized the development as “a major shattering of a historical understanding” that DOJ investigations be allowed to proceed without White House interference.
“Prior to President Trump, presidents simply did not attempt to interfere in ongoing criminal investigations, much less criminal investigations [that involved the president and his advisors],” Raskin said Friday by phone.
“This may end up being the ultimate legacy of Attorney General Barr’s conduct in the matter,” he added.
Democrats have been quick to note that Barr last year, as a private citizen, penned an unsolicited memo arguing that Trump could not be charged with obstruction as part of the Mueller probe, in part because the president has the clear power to fire members of his administration, even if it’s the FBI director investigating the election leading to the president’s ascension.
The memo has helped forge deep doubts among Democrats that Trump’s chosen attorney general is a fair judge of the obstruction question.
Speaker Nancy Pelosi (D-Calif.) on Thursday called Barr’s determination “arrogant” and “condescending.”
Rep. Steve Cohen (D-Tenn.), chairman of the House Judiciary Committee’s subpanel on the Constitution, said Barr’s “preconceived notion of whether a president could obstruct justice” makes him “far from an impartial observer.”
And Raskin likened Barr’s summary to “reading the CliffsNotes version of Macbeth written by the witches.”
“You’ve got a character who’s in the play who’s telling you the whole story,” he said. “And I’m not sure that we’ve got a particularly reliable narrator here.”
Trump and his Republican allies, meanwhile, have taken a long victory lap in the week following the release of Barr’s summary of Mueller’s findings. And they’re dismissing the notion that the absence of obstruction charges may shift powers to the executive branch.
Rep. Mark Meadows (R-N.C.), the head of the conservative Freedom Caucus, rejected the premise that Trump could have obstructed justice in firing Comey because “Comey told the president he was not the subject of an investigation.”
“From the director’s mouth himself, he said you’re not,” Meadows said.
Trump, in his letter firing Comey, said the reasons surrounded the former FBI director’s handling of the agency’s investigation into Hillary Clinton’s emails.
In an interview with NBC News afterward, however, Trump cited the “Russia thing” as an underlying factor. And Democrats aren’t buying the idea that Comey’s dismissal was anything but an attempt to silence one of the president’s sharpest internal critics.
“It was perfectly obvious at the time that he was trying to get Comey to drop the investigation into Michael Flynn, and when he refused to do that, he fired Comey,” Raskin said Friday, referring to Trump’s former national security adviser. “Nobody was pretending it was anything else.”
Democrats are demanding that Barr release the entire Mueller report, complete with the underlying documentation, by Tuesday. But they’re sure to be disappointed.
Barr delivered another letter to Congress on Friday indicating that he’s in the process of redacting sensitive material within the nearly 400-page report and would need more time. He said he expects to deliver the report “by mid-April, if not sooner.”
Democrats, wary of extensive redactions, are sending the message that they won’t accept anything less than the full text — a necessity, they argue, to guide further investigations and any legislation they deem appropriate to prevent election meddling or obstruction in the future.
“In Watergate, the institution that held Nixon accountable was Congress. It was not the U.S. Department of Justice,” said Rep. Ted Lieu (D-Calif.). “It’s clear from [Barr’s] four-page summary that Mueller found evidence of obstruction of justice. So we just want to see what it is that he found.”
With Trump’s Republican allies controlling the Senate, such legislation has little chance of being enacted in the near term. But Connolly, for one, predicted the ultimate effect of the Mueller report will be a congressional crackdown on executive powers.
“We’re going to be faced with questions, in the aftermath of this, of how do we constrain a future presidency? And the only way to do that is by statute,” he said. “In the near term, they get away with it. But in the longer term I think they actually will invite significant statutory erosion to the executive branch.”
“I don’t think our memories are going to be that short about what happened,” he added.