I’ve wondered about this a bunch myself. Barr’s bad faith was telegraphed far in advance. Why’d Mueller and his lawyers allow themselves to get snookered? Initials of TPM Reader withheld …
I have known and worked with Mueller and many of the folks over the course of the last quarter century.
[REDACTED: Discussion of TPM Reader’s professional working relationships at DOJ with various top lawyers involved in the larger Russia probe and Special Counsel investigation.]
They’re all great and careful lawyers. I don’t disagree with the bottom line that given DoJ policy and the Special Counsel regs, they could lay out evidence of Trump’s crime but not accuse him or formally recommend impeachment.
That said, I’m surprised they didn’t anticipate the kind of bad faith snookering we’re now seeing from Barr. They had every reason to know, based on his history and the public record of how he became AG, that he wouldn’t serve as an honest gatekeeper for their report. And they had a perfectly plausible opportunity to preempt his manipulation.
The OLC issues opinions on DoJ’s interpretation of the law as the AG’s delegate. Their views bind the executive branch but can be overruled by the AG (and also in theory by the President). But as others have noted, OSC was in uncharted territory in applying the OLC memo to their investigation. So they had a reasonable basis for asking OLC to assess the memo’s applicability to their specific circumstances. That’s precisely the kind of thing OLC does: applying existing law or executive branch policy to new facts. They could then have asked Barr to give that new ruling a thumbs-up or thumbs-down. Again, a perfectly reasonable thing for Mueller to do, and something that Barr would have no legitimate basis to refuse (and there’s a good argument that the refs would have triggered a report to Congress if he did refuse).
Had they done that, Barr couldn’t have put Mueller in this position. Presumably, OLC and Barr would have affirmed the OLC memo and told them not to make a judgment on whether Trump committed a crime for exactly the reasons Mueller cited. But then there’d be a record in the report itself that had Barr saying no one in DoJ could accuse the President.
If OLC/Barr had said what Barr is saying now — that Mueller could make the accusation if the evidence supported it — we’d have a very different result. Mueller would presumably have accused Trump of criminal conduct and either indicted him or recommended impeachment.
These are smart people, and I assume there’s a reason we didn’t see one of those two outcomes. But for now, I can’t imagine what that reason is.