Wednesday, May 26, 2021

Briefly Noted: Turley's Take On The DoJ Trump-No-Obstruction Memo

This is ancient history by now, but Professor Turley's interpretation is that the OLC memo pretty much blows then AG Barr's critics away. His critics, of course, were the usual suspects of the progressive Legal Left. Moonbats like Larry Tribe. This, of course, was one of the good things that Barr did, and you can find the full Turley article here:

Newly Released OLC Memo Shows Staff Lawyers Found No Basis For Obstruction Charges In Mueller Report

This is ancient history in a sense, but will hamper the continuing jihad against Trump. It confirms the poor view of Mueller and the faux impeachers. For our purposes I'll just quote from Turley's concluding paragraphs:

The controversy of Barr’s summary largely focused on a couple lines where he said that the underlying facts from by Mueller would not satisfy the elements of the crime of obstruction. It turns out that staff had made that conclusion as did some of us from existing and controlling case law. Moreover, Barr stated that the reason for the delay in the release was the removal of any grand jury material as required by federal law.

The released portions does not contradict Barr’s claim that he could not simply release a two-volume, 450-page report. One can fairly criticize aspects of that summary but the delay of the release of the report (and need for a summary) falls more squarely on Mueller. Past hearings established that Barr and Rosenstein told Mueller that they wanted his staff to flag grand jury material because Barr wanted to release the redacted report rather than a summary.  Mueller appears to have simply ignored that instruction from his superiors. As a result, a full review had to be performed with Mueller’s staff to remove grand jury material, which is mandatory under federal rules.  If Mueller had flagged and redacted the grand jury material, the redacted report could have been released without much delay as Barr preferred.

The memo also undermines the claims raised in the first impeachment of Donald Trump. I testified in that hearing and disagreed with my three co-witnesses (Professors Michael Gerhardt, Pamela Karlan, and Noah Feldman) who insisted that Trump had committed obstruction of justice. They were not alone. Democrats and the media paraded a letter from over 450 prosecutors who declared unequivocally that “Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”  The actual prosecutors at Main Justice found that not only would the allegations not meet the standard for obstruction of justice but that it would still be the case even if Trump was not the President of the United States.  The contrast shows the danger of such gotcha letters. With thousands of professors and prosecutors, it is not particularly difficult to get hundreds of signatories to support one side or another in a controversy. The Justice Department does not prosecute by plebiscite and this is why.

Well, one may be allowed to dispute Turley's blanket assertion in his final sentence as expressing an ideal. I think we all know that that's certainly not the invariable reality--if by "plebiscite" we understand "public opinion" or "political pressure."


  1. If the supreme court is going this route, it might be one way to correct things without throwing the country into even more turmoil. The court would have been viewed, by orders of magnitude greater than when they intervened in Bush's election, to be interfering with the results by the Dems. Even if we know they would be correct to have done so, political reality is it might have set the country on fire --even more than the left has already done. Getting the federal courts out of the role of regulating all the fine details of elections is potentially a much better long term win.

    But on the topic or prosecuting by plebiscite, that is just what is happening in NY vis-a-vis Trump. Quite literally, as Trump pointed out, the DA ran and won their office on prosecuting Trump.

  2. Why this is such a beat down, like with all of Trump’s presidency, is not that he was wrong all the time, but that he was right more often than not and pretty much no one had his back.

    This makes it all the more astounding on Trump’s personal outlook on life today if you have listened to any of his recent interviews.

    Me, I would have been scorched earth from 2016 on.

    1. True. I'd be a basket case, could never deal with betrayal on that scale.