Barr’s Decision on Obstruction Was Unlawful and Not Valid

The regulations that govern the appointment of a Special Counsel are published legal rules. Those rules only allow the Special Counsel to make decisions as to whether a person under investigation will be prosecuted. An Attorney General has no power under the regulations to make such decisions once a Special Counsel has been appointed. So Attorney General Barr’s opinion, concluding that President Trump is not guilty of the crime of Obstruction of Justice, is unlawful and not valid.

The regulation states that a Special Counsel may be appointed when the Department of Justice (DOJ) has a conflict of interest or if there are extraordinary circumstances. The reason for this regulation is that when DOJ cannot make a decision because it would not be credible and would be viewed as suspect, an independent credible decision maker will be appointed to investigate and make the ultimate decision to prosecute or not  prosecute. DOJ’s boss is the president, so the regulation kicked in because DOJ cannot credibly investigate and determine if its boss is a criminal. That’s both a practical rule and one that is also ingrained in the law in all States and the federal system going back to the founding of this country. 

The regulation instructed Mueller to report to DOJ the reasons for either prosecuting or not prosecuting. So Mueller likely explained his “decision to not make a decision” in the report. Time will tell when the report is released.

But the bottom line is that Barr’s opinion is legally meaningless. A future Attorney General could appoint another Special Counsel to make the decision when President Trump is out of office or a future prosecutor could simply decide to prosecute. That decision would then be accorded respect and would be a true final decision on the matter.