This is really a short memo to note that I decided to download and read AG Barr's 4-page memo to Congress on the Mueller report. (I did that after just learning that he had, under his previous work for Bush, misrepresented the law on specific areas that he sought to influence the administration to take a particular position on.)
Sure enough: the 4-page letter includes misrepresentations of current law. Let's look at how.
On the first issue of what has been called collusion but is really conspiracy and coordinated fraud, Barr only refers to the part of the Mueller report that indicates what Mueller "did not" find. We move on.
On the second issue, of obstruction of justice, Barr says that Mueller lines up all the evidence on both sides. It sounds like some folks would consider that evidence sufficient "beyond a reasonable doubt" including done with "corrupt intent". So it will be interesting to see if Barr released all of this evidence.
What bothers me most, however, are his arguments about how he's protecting the process in some way by not releasing the Mueller report in its entirety to Congress, which he should do.
Barr refers to several federal laws in making his arguments in this last part of the letter. He also refers to a law review article. Since law review articles are NOT THE LAW, I will defer on that. I haven't read it. But anyone can read what the laws he refers to say.
What I did was look very closely at the two other spots that AG Barr then makes a citation - a footnote to what he is stating, about the Mueller report in the letter and, in general, about the process.
He slying writes, "it is apparent that the report contains material that is or could be subject to Federal Rules of Criminal Procedure 6(e), which imposes restrictions on the use and disclosure of information relating to "matter(s) occurring before (a) grand jury."
Section e actually says that all proceedings MUST BE RECORDED (except for the grand jury's actual deliberations or their voting time).
Section e also states NO OBLIGATION OF SECRECY MAY BE IMPOSED ON ANY PERSON EXCEPT IN ACCORDANCE WITH RULE 6(e)(2)(B). That section states that UNLESS THESE RULES PROVIDE OTHERWISE, a list of persons "must not disclose a matter occurring before the grand jury" - and the list includes the grand jurors, interpreters, court reporters, persons in the room, etc.
HOWEVER, Section e also has a section called EXCEPTIONS. The first exception states that "Disclosure of a grand-jury matter" . . . "may be made to . . . any government personnel - including those of a state, state subdivision, Indian tribe or foreign government - that an attorney for the government considers necessary to assist in performing that attorneys' duty to enforce federal criminal law." This means that any attorney working for the government, CAN decide that the matters SHOULD be released to any state actor, such as a Congressperson or even Congressional staff, if they thought that would assist them in developing the enforcement of criminal law!
This means there is NO EXCUSE for not releasing the entire report to Congress!
Of course, Congressional powers can assist in the development of the enforcement of criminal law. That enforcement might lead to the capture and prosecution of persons now planning the disruption of the 2020 Election in the U.S. but for whom the law now in place is not strong enough nor specific enough to respond quickly and effectively to stop criminal activity related to obstructing the democratic voting process.
I would show my copied-over version of Barr's letter, in which I include the sections of the federal law he refers to, but can't manage to add it to this posting - sorry. I've cited the points I wanted to make, in any case.
In Barr's next footnote, Barr seems to be suggesting that 'you better watch out if you ask to see all of it' - but the citation he puts there is actually citing a section of law that gives COURTS (NOT HIM) the power to find someone in contempt for violating procedures and processes. Without stating it, he acts like this is 'his' deterrent against 'procedural violations'! Sorry, buddy: it's the court's deterrent: you aren't in charge of that decision. This means he's also suggested that the gap between the judicial power and the executive power has been 'crossed' in some fashion - i.e. by his statement of enforcement authority which he does not hold. And that is illegal. Gee, we're really scared now about Barr's power to hurt us if we try to find out what our taxpayer dollars paid for our best legal minds to . . . find out . . . and then tell us.
Maybe someone needs to go to jail. For contempt - or violation of the process. Maybe someone needs to lose his law license. Maybe that's AG Barr.
As I wrote since I originally released this blog post: the two footnotes I analyzed from AG Barr's letter, if written by a law student into, for example, a law class paper, and if then reviewed closely by the law professor in giving that student a grade, would simply flunk miserably! And yet, he's permitted to 'shovel this shit' at the country, Congress and our democracy? What an astoundingly galling reality!
-June Edvenson is an American attorney living and working in Norway. She is a former Administrative Law Judge and Hearing Officer for the State of Illinois, a Fellow of the International Bar Association, and active in international tax and legal work.
