No Sport for Dullards


Jacqueline Alemany, Power Up: ‘By the Book Bob:’ Prosecutors say Mueller will tightly hug Justice guidelines in report

Ms. Alemany, whoever she may be, gives us what purports to be—and very probably is—a granular look at the problematic procedural issues surrounding the forthcoming Mueller reports. I won’t summarize; if the topic interests you, best read it for yourself. Then, if you are still interested, you may wish to note the following Aardvark observations.

“No Sport for Dullards”

That’s how a law professor of mine described an especially challenging course. And that’s the situation Barr finds himself in, as the new attorney general. Ms. Alemany spells out the balancing judgments Barr will have to make, and the issues he will need to finesse. This is a job for a senior, high powered lawyer. Barr is a senior, high powered lawyer.

Will he do his job in a responsible way? As to all the judgment calls he will need to make, will he in fact exercise good judgment?

Time will tell.

And maybe he will surprise us, by doing the right thing.

It would certainly make a change.

The Presidential Immunity Catch-22

Leakers are leaking that Mueller will abide by Justice Department policy that no matter how many crimes a president may have committed, you can’t prosecute him—at least while he’s still president.*

Meanwhile, there is also a departmental policy—famously violated by Jim Comey in respect of the Clinton email investigation—that if you aren’t going to prosecute, then you don’t publicly disclose derogatory information about the target of your investigation.

And one more thing: it’s pretty much universally understood that, for purposes of impeachment, “high crimes and misdemeanors” in the Constitution calls for a political and moral judgment, not just a narrow criminal law judgment.

Can you hold those three thoughts in your head at the same time?

Good for you.

What conclusions do you draw?

For example, it may occur to you that it’s one thing to say that if a prosecutor investigates and concludes that the target of the investigation did some bad things, but those bad things weren’t actually crimes, then the prosecutor is supposed to just keep his trap shut. But maybe it’s another thing if the investigation shows that the target violated large swaths of the criminal code, but he or she can’t be prosecuted for an arbitrary reason, such as the fact that he or she is the sitting president. Maybe the latter situation calls for an exception, so that the public can learn about all the crimes the sitting president appears to have committed.

And it may occur to you that it’s ironic that an investigation widely understood as examining whether the president is qualified for office based on moral and national security concerns might wind up concealing information of vital relevance to those moral and national security concerns.

Attorney General Barr Addresses President Trump

See my next post for a hypothetical conversation between Barr and Trump. It’s a thought experiment based on the considerations outlined above.

*Let the record reflect my view that this Justice Department “policy” is unwise and legally unfounded. But debating that question is not the point of this post.