Barr's Box. . .

I have on various occasions defended Rachel Maddow on Facebook and in conversation. For me she just stands above most who are on TV and engaged in such punditry. Tonight her skills were apparent.

She started with a piece detailing a letter Amy Klobuchar sent to Special Prosecutor Mueller following her question and answer time with Attorney General Barr yesterday. Interesting but that was not what grabbed my attention. No it was the next item that she introduced that did it.

The next item was a "box" that the Attorney General might have placed himself in yesterday before the Senate Judiciary Committee. No, he was not climbing into a refrigerator box as he testified. He did, however, explain why it was that he cleared the President of obstruction in his four page summary that he issued back on March 24th. In short, as per Maddow, we have in Barr and Mueller two views of the role of the Special Counsel.

Barr believes that the role of any prosecutor in a grand jury investigation is to determine whether he or she indicts, or he or she does not. Regardless of what crimes are being investigated, and who is being investigated, the decision is do we indict or do we not. All investigations arrive at one of these two determinations for Barr. Do we indict or do we not?

Mueller seems to disagree. I am sure that he would agree with Barr that most grand jury investigations do lead to one of those two determinations. Again, to indict, or to not indict. He would however, argue that not all arrive there, or at the very least that not all should arrive at such a determination. The exception is a grand jury investigation involving the President.

Mueller's reasoning for this is two fold or at least I would suggest it is.  The first premise is that a sitting President cannot be prosecuted. that is not his policy or position, that is Department of Justice policy, which he accepts. So even if we follow Barr, and demand from the investigation that a decision be made, and they conclude that the person under investigation should be prosecuted, the process would stop there. It would stop as the person being charged in this case is a sitting President. The Department of Justice simply will not proceed as such a prosecution would harm and damage the Presidency and the country.

Mueller, however, goes a step further, it seems in that he not only does not want to prosecute a sitting President, he does not want to accuse a sitting President. The argument here is that to accuse the President and not allow him to have a trial in some respects is worse. In such a case the President would now have a criminal accusation against him, but he has no venue, no way in which to prove himself innocent, to clear his or her name. The criminal charge would just linger, weakening the person accused, the office and the country.

It might be the case that both Mueller and Barr believe that a President can neither be accused nor prosecuted. It is just that they have two very different remedies for these matters. Barr might believe it is not possible to even initiate an investigation against a sitting President and Mueller might believe that one can investigate and collect the facts for a proper institution to make a decision, whether that be Congress, or a court of law after the President leaves office. These are all speculations which Maddow did not really flesh out tonight.

Let us return to Barr's box dilemma. In short, Barr has basically said that as Mueller did not make a determination on the issue of obstruction, there is no obstruction. For there to be obstruction, Mueller would have had to made that claim in his report. As Mueller did not offer such in his report. . .  there is no obstruction.

However, as Maddow points out, though the report does not make such an assertion that does not preclude Mueller from making such. As we have in Barr a new sheriff in town, who demands all prosecutors specify at the end of their grand jury investigations  whether person(s) investigated be indicted or not, Mueller could be compelled to testify before Congress on that matter.

As the Special Prosecutor, and with Barr's edict regarding grand jury investigations, he could and most likely will be asked by the Congress, "Based on your your investigation, should the President of the United States be charged with Obstruction of Justice?" And considering the task he has just completed, two years in the making, and the title he holds, within the Department of Justice, which Attorney General Barr is now in charge of, he would be compelled to answer. He would be compelled to answer in one of two ways: Yes the President should be charged with obstruction of justice, or no he should not.

That is the Box that Attorney General Barr placed himself in yesterday during his testimony.

No doubt, I am not an attorney. Nor is Rachel Maddow, but there is a certain logic here.

Along the way, Maddow also pointed out that Mueller in the second part of his report, which deals with the charges of obstruction, twice defends his decision not to arrive at a charge. He twice defends his position that it is not right to charge a man and then not allow him his day in court. Better to just collect the evidence and make it available for those who can proceed. He makes a case for this at the beginning and at the end of the second section, focused on the obstruction charges. She asks why he would have done that? Why state that position at the beginning and end of the section?

One reason you might do such is that you have an ongoing dispute with someone regarding the matter. And we also know that Mueller met with Barr on March 5th, as per the letter Mueller had written to Barr that was recently released. In short, if you know you are going into a storm, you are going to prepare best you can, and maybe state your claims twice, once at the beginning and once at the end of the section in dispute.

Again the logic is there. Neither Maddow nor myself know, but damn.

And just to qualify, I have looked at the report but I have not read it. I might have to yet. . .