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The most interesting aspect of Barr’s summary is Mueller’s non-decision on obstruction. Here are some initial thoughts. 1/7
The traditional choice is to indict or decline, based on factual, legal, & prudential concerns. For example, decline b/c there’s evidence of guilt but no proof beyond a reasonable doubt. Or b/c there is proof but DOJ says Article II forbids indictment of a sitting president. 2/7
Maybe Mueller demurred on the question of criminal conduct because of DOJ’s view on indicting a sitting president, reasoning that there’s no need to decide the prior question of whether Trump committed the crime of obstruction since it won’t change the outcome. 3/7
On that approach, Mueller was trying to provide the facts and allow Congress and the American people to make their own decisions, which aren’t constrained by DOJ’s views or standards for indictment. 4/7
And some are questioning Barr’s choice to decide the issue that Mueller did not, and conclude that — apart from whether DOJ can indict a sitting president — this President should not be indicted for obstruction. 5/7
But my initial sense is that it’s not crazy for someone at DOJ to decide that question, even if the president can’t be indicted now, in part because whether he committed a crime is significant regardless, and in part because he CAN be indicted later, after he leaves office. 6/7
Did Mueller think his assessment of whether POTUS engaged in crime had no value? Did he consider a possible future prosecution? Was Barr’s action expected? Why did Mueller punt & what was he hoping to achieve? These are among questions I’d like to see answered in days ahead. 7/7
