Barr to Senate: President is Not Immune from Prosecutor Declaration of Indictable Offense

Attorney General William Barr’s prepared statement to the Senate Judiciary Committee appears to mark out a framework that basically says a sitting President is not immune from federal prosecutors making a determination that the President committed an indictable offense.

Whether or not Barr articulated this legal framework to justify his decision in the Mueller investigation, it has two significant implications. First, it would mean that Special Counsel Robert Mueller may now be able to say on the record whether he believes President Donald Trump committed the crime of obstruction. Mueller should have the opportunity to do so in congressional testimony soon. Second, it would mean that the U.S. Attorney’s Office for the Southern District of New York may make that formal determination as well if federal prosecutors conclude Trump engaged in a criminal conspiracy to make hush money payments in violation of federal campaign finance laws or committed tax and other financial crimes.

Barr’s Clarification on Indictability of a Sitting President

In a nutshell, Barr’s clarification of the Justice Department’s position appears to work in the following way. Before a prosecutor decides to submit a possible indictment to a grand jury, she must take a prior step: decide for herself whether the case involves a prosecutable crime. The Office of Legal Counsel opinions close off the option of prosecution and indictment of a sitting President, but not this prior step. Barr appears to be saying in his prepared remarks that a federal prosecutor (here a special counsel) can and should take that prior step. Decide yes or no on the question whether the President committed a crime.

Here are some of the key passages in Barr’s statement:

“The role of the federal prosecutor and the purpose of a criminal investigation are well-defined. Federal prosecutors work with grand juries to collect evidence to determine whether a crime has been committed. Once a prosecutor has exhausted his investigation into the facts of a case, he or she faces a binary choice: either to commence or to decline prosecution. To commence prosecution, the prosecutor must apply the principles of federal prosecution and conclude both that the conduct at issue constitutes a federal offense and that the admissible evidence would probably be sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact. These principles govern the conduct of all prosecutions by the Department and are codified in the Justice Manual.

The appointment of a Special Counsel and the investigation of the conduct of the President of the United States do not change these rules.”

[A]t the end of the day, the federal prosecutor must decide yes or no.”

The statement is consistent with Barr’s testimony before Congress in April. Barr stated in response to a question from Rep. Charlie Crist (D-Fl), “It was important for people to know the bottom line conclusions of the report,” and “from a prosecutor’s standpoint the bottom line is binary, which is charges or no charges.” The one oddity here is that Barr also refers to bringing a charge, or commencing a prosecution, which appears foreclosed by the Office of Legal Counsel opinions. A more radical reading of Barr’s statement would be that it erases the line drawn by the Office of Legal Counsel.

Mueller’s Opening

In his report, Mueller took the view that he did not have authority under the Justice Department’s standing legal opinions to make a “federal criminal accusation against a sitting President.” Mueller essentially concluded that he only had a one way ratchet: He could make a formal assessment that the President did not commit a crime (see Volume 1 of the Report on Russian interference) but he could not make a formal accusation that a sitting President did commit a crime (Volume 2 on obstruction). Barr’s statement to the Senate may reset that framework. Indeed, Barr’s clarification of the rules appears to state that Mueller has a duty to make the call. 

About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). You can follow him on Twitter @rgoodlaw.