May 2, 2019

IT'S AN IMPEACHMENT REFERRAL:

Why Barr Can't Whitewash the Mueller Report: We have a system in place for our government to uncover evidence against a sitting president. And it's working (Neal K. Katyal, May 1, 2019, NY Times)

When it comes to investigating a president, the special counsel regulations I had the privilege of drafting in 1998-99 say that such inquiries have one ultimate destination: Congress. That is where this process is going, and has to go. We are in the fifth inning, and we should celebrate a system in which our own government can uncover so much evidence against a sitting president.

Some commentators have attacked the special counsel regulations as giving the attorney general the power to close a case against the president, as Mr. Barr did with the obstruction of justice investigation into Donald Trump. But the critics' complaint here is not with the regulations but with the Constitution itself. Article II gives the executive branch control over prosecutions, so there isn't an easy way to remove the attorney general from the process.

Instead, the idea behind the regulations was to say, "We recognize the constitutional reality that the attorney general controls the prosecution power, so what else can we do?" My colleagues and I (a group that included many career officials at the Justice Department as well as bipartisan leaders in the House and Senate) settled on two things. First, provide a mechanism to enable an independent investigation, and thereby generate public confidence in the outcome of that investigation. Second, design that mechanism so that if the attorney general interferes with the special counsel's inquiry, that interference would be reported to Congress and ultimately become public.

Posted by at May 2, 2019 8:53 PM

  

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