Katyal challenges Barr on AG's role in special counsel report

Neal Katyal, former Acting Solicitor General of the U.S. Justice Department, who drafted the rules and regulations governing the special counsel position, writes in the New York Times that he has faith that our justice system "is working, and inching, however slowly, toward justice."

Katyal says, authoritatively as the author of the regulations, 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."

Katyal further states that, given that the Constitution gives the executive branch control over prosecutions, "there's no easy way to remove the attorney general from the process."

To compensate for undue bias or political sway, two mechanisms were written into the regulations.   First, an independent investigation.   Second, if an AG interferes with the special counsel's inquiry, that "would be reported to Congress and ultimately become public."

Katyal points out that the "underappreciated story" in our current situation is that the American public and Congress now have the facts and evidence before them" to show that it was indeed the AG, not the special counsel, who pronounced the president "cleared" of any obstruction charges.    Katyal adds:  "The sunlight the regulations sought is shining."    Continuing quotation from Katyal:

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"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.

"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."

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Congress must now begin a process of its own investigation.  Whether they choose to call it an "impeachment investigation" yet is irrelevant.    It should be a seeking of further facts and proof of what's in the Mueller report.  In other words, expose the truth. And, if Trump stonewalls this investigation, then Congress should hold him in contempt.

An ongoing investigation, with all the backdrop of Trump scandals obstructions, should be a nice backdrop for the election campaign.   Trump will try to spin it with himself as the victim and the Democrats as "haters," whose sole goal is to destroy his presidency.    But more and more evidence of Trump's chaos and criminality will be coming out all the time that voters are making up their minds..

Ralph