elie honig new day 5 5 2021
Honig: Here's what's interesting about the Barr memo
01:48 - Source: CNN

Editor’s Note: In this weekly column “Cross Exam,” Elie Honig, a CNN senior legal analyst and former federal and state prosecutor, gives his take on the latest legal news. The views expressed in this commentary are his own. View more opinion on CNN. Watch Honig answer readers’ questions on “CNN Newsroom with Jim Acosta” on weekends.

CNN  — 

Judge Amy Berman Jackson saw right through the dishonest attempts of former Attorney General William Barr to paper over his inexcusable distortion of the Mueller report. The federal judge pulled no punches in her ruling this month ordering the release of a redacted Justice Department memo recommending that former President Donald Trump should not be charged with obstruction of justice in the special counsel’s investigation into Russian interference in the 2016 election. The decision of the new attorney general, Merrick Garland, to appeal portions of Judge Jackson’s ruling is a mistake, and marks a missed opportunity to break cleanly from the fundamental dishonesty that defined Barr’s term in office.

Elie Honig

The dispute before Jackson concerns an internal DOJ memo relating to Barr’s deceitful effort to save Trump from the consequences of Robert Mueller’s devastating findings. Just two days after he received Mueller’s 448-page report, Barr wrote a four-page summary letter that wildly mischaracterized the report.

In the letter – which stated that Mueller’s investigation did not establish conspiracy between the Trump campaign and Russia – Barr declared Trump free and clear on obstruction of justice, even though Mueller documented more than 100 contacts between Trump allies and Russia and meticulously cited evidence of obstruction, element-by-element (though Mueller did not reach a conclusion on whether Trump committed any crime, largely because of a Justice Department policy against indicting a sitting president).

Jackson, in an ongoing lawsuit by a government transparency group seeking documents relating to the Mueller report, ruled that Barr’s summary of Mueller’s report was “disingenuous” and that the Justice Department’s representation of an internal legal memo that Barr purportedly consulted in drawing his no-obstruction conclusion offered “incomplete explanations” intended to “obfuscate the true purpose of the memorandum.”

Jackson is hardly alone in her conclusion that Barr and his Justice Department fudged the truth (and perhaps worse) to protect Trump. Mueller himself wrote a letter in which he pointedly noted that Barr’s public summary “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” And Judge Reggie Walton – nominated to the federal bench by Republican President George W. Bush in 2001 – also lambasted Barr for his dishonesty. In a March 2020 ruling, in a lawsuit brought by a public interest group seeking access to redacted portions of the Mueller report, Walton called out Barr’s “lack of candor,” which “call(s) into question Attorney General Barr’s credibility and in turn, the Department’s representation” on the Mueller report.

In newly unredacted portions of her decision, Jackson went even farther. She pointedly ruled that Barr spearheaded an effort to get “a jump on public relations” intended to clear Trump notwithstanding the damning findings in the Mueller report, and that DOJ’s true focus was on “how to neutralize the impact of the Report in the court of public opinion.” Jackson hit the nail on the head here. Indeed, even though it took Barr all of two days to reach his “no obstruction” conclusion, he then withheld the Mueller report itself from the public for nearly a month, purportedly while doing redactions (which, Judge Walton later found, were improperly done).

Meanwhile, public opinion calcified around his distorted, pro-Trump conclusions; Trump and his supporters spent that crucial time falsely crowing that Mueller had found “no collusion, no obstruction.” To this day, Trump has faced no meaningful consequence for his obstructive actions. He was never impeached for his conduct detailed in the Mueller report, nor has he been criminally charged.

Garland landed in a difficult position. Every new attorney general inherits messes from the prior administration, and this is an ugly one. And DOJ as an institution tends to be protective of its internal, deliberative processes. But, by appealing, Garland is inherently going to bat for the prior administration, or at least failing to draw a clear line in the sand. A decision by Garland not to appeal would have meant Americans could finally see an unredacted version of the memo reviewing Mueller’s report. Perhaps more importantly, it would have sent a powerful message: that the new Justice Department intends to do things differently.

Now, your questions

Matt (Nevada): If enough Americans end up refusing to take any of the Covid vaccines, and it ends up endangering our reaching herd immunity, is it possible for the government to make it mandatory?

Yes. The US Supreme Court ruled in 1905 that states can use their general “police powers” to enforce mandatory vaccination laws. This is not necessarily blanket permission for states to do as they please, however. Any exercise of state power must be reasonable, and would depend on the nature of the disease, its spread, and the vaccine. In 1922, the Court held that states also have the power to require certain vaccines for public school students. As a result, every state now has laws requiring some form of such mandatory vaccinations.

It does not seem there currently is any significant political support for mandatory vaccinations. But if things change and policymakers choose to enact mandatory vaccine laws, and such measures were reasonably medically necessary to protect public safety, those laws likely would withstand legal scrutiny.

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    Jeremy (Tennessee): Now that Don McGahn has agreed to testify in Congress, can Donald Trump try to block it?

    McGahn, who served as White House counsel during the Trump administration, was a key witness to Trump’s potential obstruction of justice, according to Mueller’s findings. After a lengthy court battle, McGahn has now agreed to testify in the House Judiciary Committee, behind closed doors. Trump theoretically can try to block the testimony by filing a lawsuit claiming a legal privilege or immunity. But he has tried this tack already, resulting in the prolonged court battle, and he has not filed any such motion thus far, despite McGahn’s agreement to testify becoming public two weeks ago. It seems at this point McGahn’s testimony will proceed.