If and when journalists read the best analysis to date of the second part of special counsel Robert Mueller’s report, they’ll be in for a shock.
Part one of the report, though heavily redacted, has a simple conclusion that continues to reverberate through American politics: There was no conspiracy between President Donald Trump, any member of his family or campaign staff, indeed between the Russian government and any American. Having come up empty on conspiracy charges - against anyone - the Mueller report turned to a series of accounts that can be summarized as “The president did these things, and they might be obstruction of justice.” (It is indeed possible to violate prohibitions on obstruction of justice without an underlying crime. While rare, such cases do exist.)
Enter Harvard Law professor Jack Goldsmith, widely regarded as a leading expert - perhaps the leading expert working today - on national security law. Formerly the assistant attorney general for the Office of Legal Counsel (where the Justice Department’s brightest minds gather), Goldsmith now teaches at Harvard and writes for the website Lawfare, which he co-founded.
Two weeks ago, Goldsmith issued an assessment of the second part of the special counsel’s report; on Thursday, he posted a follow-up to that assessment. In both pieces, with logic and detail, Goldsmith destroys claims of obstruction of justice by those unwilling to come to grips with the fact that the Mueller investigation is over. His analysis is tough, slogging through statutes, opinions and high principles of constitutional law, but at the end of the second essay, Goldsmith bluntly concludes that “the talented lawyers in the special counsel’s office … include at the center of the legal analysis in Volume II a transparently weak argument - so weak that it has no defenders.”
Now the baton is passed from Mueller to Attorney General William Barr, and Barr is interested in much more important matters than the strained obstruction of justice theories of 19 frustrated prosecutors who, along with a vast staff of experts, worked mightily to find grounds on which to apply the obstruction-of-justice statute to the president’s actions. They could not. Rather than simply admit defeat, they concocted - as Goldsmith shows - an absurd theory, that, despite its shakiness, has traveled far and wide and has now yielded new “cover-up” talking points to the president’s opponents.
Talking points, but not a formal impeachment proceeding. Why not? Because it is a doomed undertaking, and House Speaker Nancy Pelosi, D-Calif., knows that to focus on it would also bring focus to “Spygate” - the ongoing investigation into the possible abuses of power by a handful of senior FBI officials and possibly others in the intelligence community and the Obama administration. The attorney general has been open that an inquiry into the sketchy behaviors of the election season and transition period is underway. Barr had not said more than that spying on the Trump campaign occurred, and he did not say whether there was justification (a “predicate”) or not. He doesn’t know. He has tasked a senior, respected prosecutor, John Durham, the U.S. attorney for the District of Connecticut, with collecting the record and analyzing it.
Which, of course, means that, if crimes were committed, the criminals are sweating. It means they are “lawyering up.” It means the media is assembling its best and brightest to focus exclusively on what would be the scandal of the century. Oh, wait: That last part doesn’t appear to be the case. There are stories about what Barr has said and done, but not yet reports from any crack teams of wildly ambitious journalists of the sort that helped crack open Watergate and other scandals. There just doesn’t seem to be much enthusiasm for “Spygate.”
If Durham finds wrongdoing, it will be impossible for media elites to ignore. Wait and see, of course - the same advice I gave to Trump supporters and opponents alike through the long months of the Mueller investigation. Now that it is over, the same patience must be extended to Barr and Durham. And their work deserves as much attention as Mueller’s received, because there might be a crime - or a few crimes - there. We shall see.
Hugh Hewitt is a columnist with The Washington Post.