The Forgotten Reason Congress Needs to See the Mueller Report
Legislators have a responsibility to police obstruction of justice, according to the Constitution.
By Asha Rangappa
News that Attorney General William Barr might have mischaracterized special counsel Robert Mueller’s final report on obstruction of justice by the president has increased calls for Barr to release the report to Congress. If Barr refuses to do so and House Judiciary Committee Chairman Jerry Nadler issues a subpoena, we may be in for a separation of powers showdown—and a central question will be the legal basis upon which Congress is entitled to see the fruits of Mueller’s investigation.
The argument for Congress obtaining Mueller’s full report on obstruction is typically based on its constitutional power to impeach: Since Congress alone has the power to take action against the president, if he has broken the law or abused his power—which is true if the Justice Department adheres to its policy of not indicting a sitting president, even if it is not settled law—Congress would by necessity need to see the evidence Mueller has gathered to determine if impeachment is warranted. If lawmakers weren’t able to see the report, then the president would effectively be immunized from accountability for wrongdoing while he is in office, putting him above the law. This is a powerful argument in the battle that could ensue in the coming weeks. But it overlooks an additional constitutional basis that Congress has for reviewing the president’s conduct: Congress has a responsibility, rooted firmly in the Constitution, to safeguard the integrity of the justice system, including to prevent obstruction of justice. Therefore, Mueller’s findings are as much about whether President Donald Trump has stepped on Congress’ toes as it is about whether he broke the law.
In contesting a subpoena from Congress, the White House likely will make its favorite defense, which is that the president, legally speaking, can’t obstruct justice. This “unitary executive” theory rests on Article II of the Constitution, which gives the chief executive the power to “take care that the laws be faithfully executed.” According to this view, this language means the president alone is in charge of which cases to pursue in the justice system: If he decides to stop an investigation, that is his prerogative, and his reasons for doing so are beyond the purview of investigators, Congress and the courts. A year before being confirmed as attorney general, Barr laid out an ancillary proposition in a long and rambling memo to Deputy Attorney General Rod Rosenstein, arguing the president can’t be investigated for obstruction based on something that is, on its face, a valid exercise of his power — like firing the FBI director. According to Barr, questioning the motives behind such an action would have disastrous consequences and open a Pandora’s box of potential inquisitions into “all exercises of prosecutorial discretion.”
The problem with this defense is that it conflates enforcement of the laws—a power that resides in the executive branch—with the administration of justice, which is constitutional responsibility that is shared by all three branches, including Congress. When it comes to the administration of justice—and those who would thwart the integrity of that process—Congress has a big role to play.
The idea of obstruction of justice has its origins in an 1819 Supreme Court case, McCulloch v. Maryland (a case you might be familiar with if you’re a Hamilton fan), that challenged Congress’ power to create a national bank. The court found that Congress’ authority to create a bank—even though not explicitly mentioned in the Constitution—stemmed from its power to create laws “necessary and proper” for executing its explicit powers, like collecting taxes, borrowing money and regulating commerce. Importantly, the court noted that under the same reasoning, Congress could similarly pass laws which are “necessary and proper” to execute the powers of the other branches, as well. As an example of the latter, the Supreme Court pointed out that Congress could pass laws to ensure the effective functioning of the courts, noting that crimes like “falsifying … a process of the court,” or perjury, were “conducive to the due administration of justice.” In other words, the court made clear that Congress has the constitutional authority to ensure that the justice system can function without malevolent interference: This is exactly what obstruction of justice is about.
As courts have observed in more recent cases, it makes sense that Congress would be entrusted with safeguarding the integrity of the judicial process. After all, Congress itself is responsible for creating all federal courts apart from the Supreme Court. Protecting the procedure through which cases are investigated, tried and adjudicated is what allows the judicial branch to function as a coequal branch—if defendants could derail cases, mislead investigators or lie to the court with impunity, courts would cease to have the ability to administer justice at all. This is why “process crimes”—the family of crimes that includes not only obstruction of justice, but false statements, perjury, witness tampering and contempt of court (a mechanism by which the judiciary can assert its own interest in fair administration of the laws)—are indispensable to the rule of law: They ensure that the integrity of the justice system is maintained from start to finish.
If it’s Congress’ job to create rules that protect the courts’ ability to do their job, then it’s also Congress’ duty to get to the bottom of whether the president has tried to thwart those efforts.
In short, while the president can decide what cases to pursue, it’s Congress’ job to protect how they move through our judicial system. In fact, understanding obstruction of justice as an expression of Congress’ constitutional power to safeguard the judicial process means that contrary to Barr’s assertions, the motive behind the obstruction matters—particularly when it comes to the president. Precisely because the test for obstruction of justice is whether someone acted with a “corrupt” motive, the crime gets to the heart of whether Trump has upheld his oath to ensure “faithful” execution of the laws—and gives the “take care clause” meaning and accountability. If there is evidence, for example, that Trump tried to stop the Russia investigation to shield his own private conduct because it is illegal, politically damaging, or even merely embarrassing to him personally, then he has not only violated the U.S. legal code, but also his own constitutional duty to enforce the laws in good faith.
It’s because the president holds such immense power that the obstruction of justice law not only applies to him, but applies especially to him: When he abuses that authority, he is not only potentially breaking the law, he is encroaching on Congress’ constitutional interest in the administration of justice—which means Congress has a lens, independent of its impeachment power, through which to review his actions. The full details of Mueller’s report will reveal if Trump used his power to undermine the efforts of the coequal branches to uphold the rule of law—and Congress has every right to find out.
Link to Original Article: The Forgotten Reason Congress Needs to See the Mueller Report.