Over the past several days, as the nation watched and waited for details of Special Counsel Robert Mueller‘s report on Russian interference in the 2016 election, then learned of Attorney General William Barr‘s summary of that report, UB School of Law faculty provided their expertise to help clarify the issues involved.
On Friday, March 22, as anticipation mounted that the report would be imminently forthcoming, UB School of Law Dean Ron Weich told the Huffington Post that he thinks the full report will ultimately end up in congressional hands. “There are plenty of precedents where the public interest outweighs the concerns,” Weich told HuffPost. “In this case, the public interest is overwhelming. …
“If it’s that momentous ― if it’s, ‘We believe the president engaged in conduct that would have led to criminal charges were he not the president’ ― obviously that has to go to Congress,” Dean Weich continued. “The only reason he can’t be indicted is because the remedy is, in Congress, impeachment. That’s the basis for the department policy that he can’t be indicted, that’s there’s another remedy in the Constitution.”
That evening, Prof. Kim Wehle spoke on CBSN Evening News and BBC World News about the early implications of Mr. Barr’s letter to congressional leaders announcing he was in receipt of the Mueller report. She also predicted that the matter could end up before the Supreme Court, preserving the constitutional separation of powers.
Later that day, Prof. Wehle was quoted in an article on PBS Newshour. “We’re in a fight to the death for the viability of the Congress as an institution,” said Prof. Wehle. “The checks and balances system, whether anyone is above the law, the whole fulcrum of our democratic process is hinging on Barr as we speak. He’s not elected and he’s picked by the person who’s being investigated.”
Prof. Charles Tiefer weighed in with an article of his own, “Trump Defenders Underestimate The Mueller Report By Touting No Indictments,” on Forbes.com.
“For ten briefly-stated reasons,” he wrote, “the Mueller action marks more of a beginning, than an end, to the search for wrongdoing in the Russia scandal.”
He points to ongoing investigations in New York and Virginia, the fact that witnesses like former National Security Advisor Michael Flynn and Trump Organization CFO Allen Weisselberg are continuing to cooperate with prosecutors, and the possibility that Mr. Mueller will testify before Congress as examples of how the investigations are far from concluded.
On Saturday, March 23, Prof. Wehle wrote a piece for The Bulwark analyzing the significance of what, at that moment, was the only clear indication we had of Mr. Barr’s intentions. “Rosenstein has already stated publicly that ‘[i]f we aren’t prepared to prove our case beyond a reasonable doubt in court, then we have no business making allegations against American citizens,’ ” she wrote. “What this suggests is that, in addition to things like grand jury material and redactions to protect national security information, DoJ’s dream team might well decide that nothing else goes public to the extent that it could either incriminate—or exonerate—individuals whom the special counsel decided not to indict. “
Writing in The Hill on Sunday, March 24, Prof. Wehle elaborated on her opinion that the matter might only be resolved after a subpoena fight that ends up in the Supreme Court. “It’s a classic conflict of interest, folks,” she wrote. “And it’s a structural problem for the American presidency — one that’s not going away unless, and until, the Supreme Court resolves it in a subpoena fight.”
Also on March 24, Politico asked a number of experts, including former Watergate prosecutor Jill Wine-Banks and former White House ethics lawyer Richard Painter, “Has the President Been Exonerated?” and published their responses. UB School of Law Prof. Kim Wehle had this to say: “According to the attorney general’s summary, the investigation “did not establish” conspiracy or knowing coordination between the Trump campaign and Russia. But the summary also states, regarding the possibility of obstruction of justice, that while the Mueller report “does not conclude that the President committed a crime, it also does not exonerate him.”
“The question for Mueller was whether his team could meet the burden of proof. That is a legal threshold—not a political one. The attorney general’s statement suggests there is incriminating information in the full report but not enough to charge and prove any additional crimes beyond a reasonable doubt.”