Legislators have a responsibility to police obstruction of justice, according to the Constitution.
News that Attorney General Bill Barr might have mischaracterized special counsel Robert Mueller’s final report on obstruction of justice by the president has increased calls for Barr to release the report to Congress. If Barr refuses to do so and House Judiciary Committee Chairman Rep. Jerry Nadler issues a subpoena, we may be in for a separation of powers showdown—and a central question will be the legal basis upon which Congress is entitled to see the fruits of Mueller’s investigation.
The argument for Congress’ obtaining Mueller’s full report on obstruction is typically based on its constitutional power to impeach: Since Congress alone has the power to take action against the president, if he has broken the law or abused his power—which is true if the Justice Department adheres to its policy of not indicting a sitting president, even if it is not settled law—Congress would by necessity need to see the evidence Mueller has gathered to determine if impeachment is warranted. If lawmakers weren’t able to see the report, then the president would effectively be immunized from accountability for wrongdoing while he is in office, putting him above the law.
This is a powerful argument in the battle that could ensue in the coming weeks. But it overlooks an additional constitutional basis that Congress has for reviewing the president’s conduct: Congress has a responsibility, rooted firmly in the Constitution, to safeguard the integrity of the justice system, including to prevent obstruction of justice. As such, Mueller’s findings are as much about whether President Donald Trump has stepped on Congress’ toes as it is about whether he broke the law.
In contesting a subpoena from Congress, the White House will likely make its favorite defense, which is that the president, legally speaking, can’t obstruct justice. This “unitary executive” theory rests on Article II of the Constitution, which gives the chief executive the power to “take care that the laws be faithfully executed.” According to this view, this language means the president alone is in charge of which cases to pursue in the justice system: If he decides to stop an investigation, that is his prerogative, and his reasons for doing so are beyond the purview of investigators, Congress and the courts. A year before being confirmed as attorney general, Bill Barr laid out an ancillary proposition in a long and rambling memo to Deputy Attorney General Rod Rosenstein, arguing the president can’t be investigated for obstruction based on something that is, on its face, a valid exercise of his power (like firing the FBI director). According to Barr, questioning the motives behind such an action would have disastrous consequences and open a Pandora’s box of potential inquisitions into “all exercises of prosecutorial discretion.”
The problem with this defense is that it conflates enforcement of the laws—a power that resides in the executive branch—with the administration of justice, which is constitutional responsibility that is shared by all three branches, including Congress. When it comes to the administration of justice—and those who would thwart the integrity of that process—Congress has a big role to play.
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My thoughts on why Congress is allowed to see Mueller's findings on obstruction, regardless of what "conclusions" Barr has drawn (it includes a Hamilton reference) https://t.co/wSQVW5KNcY
— Asha Rangappa (@AshaRangappa_) April 9, 2019
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