Obstruction Is Legal Whenever It Is Successful

We now have Mr. Barr’s 4 page book report. We can give it a passing grade, as long as we agree on something else – either about the law, or about Mr. Barr.


So the summary of the Mueller Report, the summary from Attorney General William Barr is not actually a summary. Mr. Barr clarifies. He is merely drawing his own conclusions.

Attorney General Barr sees no provable criminal case of conspiracy to help the Russian interference in US elections. The case for obstruction is less clear. He does not see proof that would hold up in court, but he says President Trump has not been cleared. He quotes part of a sentence from the Mueller report.

…while this report does not conclude that the President committed a crime, it also does not exonerate him.

Republicans quickly attack those who suspect the President of conspiracy. And they insist that obstruction cannot exist unless the original crime is proven. Senator Rand Paul repeats the now familiar argument:

I think that you can’t obstruct justice when there wasn’t a crime. How do you cover up for a crime that didn’t occur? So if President Trump and nobody in his campaign colluded with Russia, which was the accusation, if they didn’t do that, how can they be covering up for something they didn’t do?

Rand Paul, on Fox News, March 26, 2019

There were similar arguments made in a famous case of national security betrayal more than 15 years ago.

It might have made a good espionage movie. The brave undercover spy finds her cover blown by Washington officials in an act of political gamesmanship.

The names of the principle actors seemed like something from a spy novel or a movie. At least an episode on Law & Order. Spy Valerie Plame. Stolid all-American hero, Joe Wilson. Evil Karl (with a K) Rove. Fall guy Scooter Libby.

But it wasn’t a novel or a movie or a television episode. It happened in real life, and we’ll likely never know what prices were paid and by whom.

Joe Wilson really had been called out as an American hero by President George H. W. Bush. Just before the first invasion of Iraq, Wilson had rescued Americans that Saddam Hussein had intended to execute. When Saddam threatened to hang Wilson himself, the Ambassador put a makeshift noose around his own neck and publicly dared the dictator to carry out his threat.

But it was his decades before that, in Africa in one sensitive post after another, that made him valuable after 9/11.

There was no evidence that Saddam Hussein had anything to do with the hijacked planes crashing into buildings. But the notion that an attack on America could have come from a cartoon villain operating from some cave in Afghanistan could not be believed by the second Bush administration. There had to be state sponsorship. And Saddam Hussein was the prime suspect. The Bush/Cheney administration was not going to let him get away with it.

Problem was there was no evidence. And, without that evidence, there was not sufficient reason to give to the American people for an invasion. So a new reason was contrived. Saddam was importing uranium. If he succeeded in building atomic weapons, the last thing many Americans would see would be mushrooms clouds over major cities. He had to be stopped.

The CIA was ordered to find the evidence.

The British government told the CIA that the only place Saddam Hussein could be getting such quantities of uranium was Africa.

Former Ambassador Joe Wilson had the contacts. He knew the right people and they trusted him. The CIA recruited Joe Wilson to conduct an investigation. And he did. And reported back what he found.

There was no uranium flowing from Africa to Iraq. So Saddam could have no nuclear program.

That didn’t stop the announcement. President George W. Bush went before Congress and said this:

The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.

The United States was about to go to war on the basis of pretense.

Joe Wilson, the Ambassador who had stood up to Saddam Hussein, who had been declared an American hero by one President, who had conducted an investigation for another, interviewing dozens of trusted sources, went public. The invasion was based on a lie.

And the Republican administration struck back. It turned out that Wilson’s wife, Valerie Plame, had operated for years as an undercover spy. Her specialty was preventing countries like Iraq from getting or developing nuclear weapons. Every time Joe had gone to another country, friendly or not, she had been cultivating sources, getting people to talk with her in secret.

Valerie Plame had no diplomatic cover. If she had been caught it could have been over for her. Death or a life in prison was a non-trivial possibility.

But the administration was mad as hell at Joe Wilson. Karl Rove, senior advisor to President Bush, told his people to regard Valerie Plame as fair game.

I’ve served the United States loyally and to the best of my ability as a covert operations officer for the Central Intelligence Agency. I worked on behalf of the national security of our country, on behalf of the people of the United States, until my name and true affiliation were exposed in the national media, on July 14, 2003, after a leak by administration officials.

Valerie Plame in Congressional Testimony, March 16, 2007

More deadly results may never be known. Every source who had spoken to Valerie Plame or other agents in the same network, would now be at risk.

Not only have breaches of national security endangered CIA officers, it has jeopardized and even destroyed entire networks of foreign agents, who in turn risked their own lives and those of their families to provide the United States with needed intelligence. Lives are literally at stake.

We may never know what price was paid by foreign sources for helping Americans to prevent terrorist attacks.

We in the CIA always know that we might be exposed and threatened by foreign enemies. It was a terrible irony that administration officials were the ones who destroyed my cover.

The United States Attorney for Southern Illinois was assigned to investigate. Patrick Fitzgerald found his investigation impeded by a sort of gray wall of silence. He was able to prove that the obstruction was coordinated by the Vice President’s Chief of Staff.

Furthermore, testimony in the criminal trial of Vice President Cheney’s former Chief of Staff, who has now been convicted of serious crimes, indicates that my exposure arose from purely political motives.

Scooter Libby, the Chief of Staff to Vice President Richard Cheney, was convicted of obstruction of justice and sent to prison.

The motives for exposing an American spy quickly became apparent.

Snide references were made that Joe Wilson was recruited at the instigation of Valerie Plame. Maybe it could be used to embarrass or discredit him. After all, what kind of man has to be hired by his wife?

A more sinister reason also became apparent. CIA operatives were being sent a message. It was something out of The Godfather.

Don’t ever take sides with anyone against the family again. Ever.

If you cross this administration ever again, Valerie Plame will not be the only spy to be sacrificed.

Every single one of my former CIA colleagues; from my fellow covert officers, to analysts, to technical operations officers, to even the secretaries; understand the vulnerabilities of our officers and recognize that the travesty of what happened to me could happen to them.

Valerie Plame

Later, Vice President Cheney was given the opportunity to deny reports that he had personally ordered that the cover of this spy be blown, that her career be ended, and the lives of others be put in danger, just for political revenge.

There was a story in the National Journal that Cheney authorized Libby to leak confidential information. Can you confirm or deny that?

I have the authority as Vice President under executive order issued by the President to classify and declassify information. And everything I’ve done is consistent with those authorities.

Richard Cheney, Septenber 10, 2006

There you have it. If the authority exists, it does not matter if anything is done for a corrupt political reason.

Some conservatives, in those days, insisted that, since Fitzgerald was unable to accumulate the evidence needed to prosecute those responsible for damaging national security, nobody should have been prosecuted at all. Obstruction was a process crime, and there could be no obstruction if there was no underlying crime.

This is how the U.S. Attorney, Patrick Fitzgerald, answered that argument.

What we have when someone charges obstruction of justice, the umpire gets sand thrown in his eyes. He’s trying to figure out what happened and somebody blocked their view.

He applied this to the investigation of a deliberate National Security breach, in which evidence was hidden, and investigators were prevented from proving their case.

I also want to take away from the notion that somehow we should take an obstruction charge less seriously than a leak charge. This is a very serious matter.

Obstruction can be prosecuted, even if the obstruction succeeds. Critics were wrong then. They are wrong now.

I think that you can’t obstruct justice when there wasn’t a crime. How do you cover up for a crime that didn’t occur?

William Barr will not release the entire Mueller report. But he briefly tells us what he has learned from it, in what he now explains is not a summary. The Mueller report clears the President of conspiring directly with Vladimir Putin. It does not exactly clear him of obstruction of justice, but Barr assures us that obstruction cannot be legally demonstrated.

Mr. Barr does not exactly embrace the Rand Paul logic of obstruction:

How do you cover up for a crime that didn’t occur?

Instead, he seems implicitly to refer back to a previous opinion he wrote about the Mueller investigation. If an official has the authority to make a decision, making that decision cannot be against the law, even if there is corrupt intent. For example, a President cannot be wrong in firing an FBI Director, even if the firing is to impede an investigation into his own conduct. Anything he has the authority to do is legal.

We who are not lawyers are at a disadvantage. We can only apply innate intelligence to whether the law conforms to what we see as common sense justice. We can draw some obvious conclusions.

A Charles Dickens character is told that the law presumes that any crime his wife may commit she will have done at his instruction. Is that really what the law supposes?

If the law supposes that … then the law is a ass — a idiot.

I can drive my automobile down a suburban street as long as I am driving within the speed limit, have the requisite papers to prove ownership of my vehicle and insurance, and stay in my own lane.

By Mr. Barr’s logic, if I happen to run over a neighbor with whom I have some angry disagreement, or a member of his family, it should not matter to the law whether I have killed that person by accident or deliberately. My motives are not relevant to the Attorney General.

So we can view Mr. Barr’s interpretation of the Mueller report in one of two alternate ways:

  • The law is an ass. It is an idiot.

    or

  • Mr. Barr got his law degree by sending in box tops.

Many thanks to Burr Deming, our friend and partner, of FairandUnbalanced.com.

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Posted by on April 7, 2019. Filed under COMMENTARY/OPINION. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry
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One Response to Obstruction Is Legal Whenever It Is Successful

  1. BitcoDavid Reply

    April 7, 2019 at 10:18 am

    Look. Everybody knows Trump is guilty as hell. Nobody cares. Just release the fuckin’ report. We’ll see first hand that Trump is guilty, but nobody will give a shit. Trump will stay in office.

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