Hastings Constitutional Law Quarterly


M. Akram Faizer


Department of Justice (“DOJ”) Special Counsel, Robert S. Mueller, III’s two-volume, 448-page Report on the Investigation into Russian Interference in the 2016 Presidential Election (“the Report”), did an outstanding job in evidencing that President Trump’s actions in office satisfied the federal obstruction of justice standards. However, due to Mueller’s limited brief and his concern for maintaining the proper separation of powers, the Report, submitted confidentially to former Attorney General Barr as required by Department of Justice Regulations, abjured a determination as to Presidential criminality. This regulatory confidentiality requirement in conjunction with the requirement that Barr disclose an unverifiable Report summary to Congress, entitled the former Attorney General to mischaracterize the then-confidential report as an effective exoneration of the President, when the full Report actually reads like a depressing Mafia boss indictment. By the time Barr released the Report almost a full month later, the damage was done. The former President and his supporters by then had succeeded in manipulating the political culture to accept Barr’s dishonest mischaracterization of the Report and stymie its use to commence either an impeachment procing or force the President to put a stop to Russian election interference.

Barr’s success in marginalizing the Report tragically facilitated Presidential impunity by encouraging the President’s worst instincts as manifested by his abuse of power in the Ukraine matter and his Administration’s dishonest, bungling and divisive response to both the COVID-19 pandemic and the civil rights protests that followed George Floyd’s killing. Indeed, although the President was subsequently impeached and tried by the full U.S. Senate twice for abuse of power and obstruction of Congress with respect to U.S. relations with the Government of Ukraine and for inciting an insurrection by his supporters to prevent Congress from certifying the 2020 Presidential election results in favor of his opponent, current President Joseph Biden, the ostensible “Russia Hoax” and “witch hunt” against the President was cited by the President and his supporters to delegitimize the impeachment proceedings and facilitate the President’s partisan acquittals by the Senate.

Although presidential impunity has been facilitated by political polarization and partisan media, it is also, in this instance, attributable to infirmities in the Department of Justice Special Counsel regulations (“Special Counsel Regulations”) that would have been ferreted out had they been timely submitted for notice and comment feedback when first implemented by former Attorney General Reno in 1999. This is because the Special Counsel Regulations, as written, never contemplated an unprincipled and partisan-inclined Attorney General who would undermine the Report to further Presidential impunity.

I recommend submitting the Special Counsel Regulations for notice and comment review under The Administrative Procedure Act Section 553 to solicit feedback from civil society as to how they can be improved consistent with the President’s powers under Article II of the U.S. Constitution. At a minimum, I would expect that the received public comment will recommend future Attorneys General be disallowed from disclosing synopses or summaries of Special Counsel reports without simultaneously disclosing the entire redacted document. If this requirement had been in place at the time when the Report was first submitted to Barr, the political culture would have reacted far more forcefully against presidential abuse of power and obstruction of justice. Most likely, former President Trump would either have been removed from office or chastened by a near conviction in the Senate after impeachment in the House. Certainly, the country would not be facing the current struggle of maintaining national cohesion after an unprecedented second impeachment of a president, after former President Trump, egregiously and systematically abused his power to undermine public confidence in the 2020 presidential election, and, after losing the election to President Biden, both refused to concede the election, and incited a mob of his supporters to invade the U.S. Capitol on January 6, 2021, which temporarily prevented Congress from certifying the results of the 2020 presidential election.