Article
Mueller Report Piece - Hastings CLQ.pdf
Hastings Constitutional Law Quarterly
(2021)
Abstract
Department of Justice (“DOJ”) Special Counsel, Robert S. Mueller,
III’s two-volume, 448-page Report on the Investigation into Russian Interference
in the 2016 Presidential Election (“the Report”), did an outstanding
job in evidencing that President Trump’s actions in office satisfied the federal
obstruction of justice standards. However, due to Mueller’s limited brief
and his concern for maintaining the proper separation of powers, the Report,
submitted confidentially to former Attorney General Barr as required by Department
of Justice Regulations, abjured a determination as to Presidential
criminality. This regulatory confidentiality requirement in conjunction with
the requirement that Barr disclose an unverifiable Report summary to Congress,
entitled the former Attorney General to mischaracterize the then-confidential
report as an effective exoneration of the President, when the full
Report actually reads like a depressing Mafia boss indictment. By the time
Barr released the Report almost a full month later, the damage was done.
The former President and his supporters by then had succeeded in manipulating
the political culture to accept Barr’s dishonest mischaracterization of
the Report and stymie its use to commence either an impeachment proceeding
or force the President to put a stop to Russian election interference.
Barr’s success in marginalizing the Report tragically facilitated
Presidential impunity by encouraging the President’s worst instincts as manifested
by his abuse of power in the Ukraine matter and his Administration’s
dishonest, bungling and divisive response to both the COVID-19 pandemic and the civil rights protests that followed George Floyd’s killing. Indeed,
although the President was subsequently impeached and tried by the full U.S.
Senate twice for abuse of power and obstruction of Congress with respect to
U.S. relations with the Government of Ukraine and for inciting an insurrection
by his supporters to prevent Congress from certifying the 2020 Presidential
election results in favor of his opponent, current President Joseph
Biden, the ostensible “Russia Hoax” and “witch hunt” against the President
was cited by the President and his supporters to delegitimize the impeachment
proceedings and facilitate the President’s partisan acquittals by the
Senate.
Although presidential impunity has been facilitated by political polarization
and partisan media, it is also, in this instance, attributable to infirmities
in the Department of Justice Special Counsel regulations (“Special
Counsel Regulations”) that would have been ferreted out had they been
timely submitted for notice and comment feedback when first implemented
by former Attorney General Reno in 1999. This is because the Special Counsel
Regulations, as written, never contemplated an unprincipled and partisaninclined
Attorney General who would undermine the Report to further Presidential
impunity.
I recommend submitting the Special Counsel Regulations for notice
and comment review under The Administrative Procedure Act Section 553
to solicit feedback from civil society as to how they can be improved consistent
with the President’s powers under Article II of the U.S. Constitution.
At a minimum, I would expect that the received public comment will recommend
future Attorneys General be disallowed from disclosing synopses or
summaries of Special Counsel reports without simultaneously disclosing the
entire redacted document. If this requirement had been in place at the time
when the Report was first submitted to Barr, the political culture would have
reacted far more forcefully against presidential abuse of power and obstruction
of justice. Most likely, former President Trump would either have been
removed from office or chastened by a near conviction in the Senate after
impeachment in the House. Certainly, the country would not be facing the
current struggle of maintaining national cohesion after an unprecedented second
impeachment of a president, after former President Trump, egregiously
and systematically abused his power to undermine public confidence in the
2020 presidential election, and, after losing the election to President Biden,
both refused to concede the election, and incited a mob of his supporters to
invade the U.S. Capitol on January 6, 2021, which temporarily prevented
Congress from certifying the results of the 2020 presidential election.
Keywords
- Special Counsel,
- Administrative Law,
- Notice and Comment,
- Mueller Report,
- Russian Election Interference
Disciplines
Publication Date
Summer April 6, 2021
DOI
Summer 2021
Citation Information
Akram Faizer. "Mueller Report Piece - Hastings CLQ.pdf" Hastings Constitutional Law Quarterly Vol. 48 Iss. 4 (2021) p. 536 - 576 ISSN: 0094-5617 Available at: http://works.bepress.com/akram_faizer/24/