Wednesday, May 1, 2019

AG Barr on Obstruction of Justice - Will this be the new DOJ Policy

AG Barr's statement (here) accompanying his testimony this morning before the Senate Judiciary Committee states in part with regard to obstruction of justice:

"In Volume II of the report, the Special Counsel considered whether certain actions of the President could amount to obstruction of justice. The Special Counsel decided not to reach a conclusion, however, about whether the President committed an obstruction offense. Instead, the report recounts ten episodes and discusses potential legal theories for connecting the President’s actions to the elements of an obstruction offense. After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that, under the principles of federal prosecution, the evidence developed by the Special Counsel would not be sufficient to charge the President with an obstruction-of-justice offense."

In answering questions he said that usually you need an "underlying crime" and an "inherently malignant act" for obstruction of justice.  Two questions:

  1. Were the ten items in the Mueller Report insufficient to meet the Barr standard?
  2. Will the DOJ be using this "new" standard in all obstruction of justice cases?
  3.  Can defense counsel argue in obstruction of justice cases, insufficient evidence if it fails to meet the Barr standard?


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