Attorney General William Barr’s summary of the Mueller reports says:
[T]he Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.
Yet the Trump campaign seemed shockingly and unpatriotically open to doing so. The New York Times reported in January that Trump and His Associates Had More Than 100 Contacts With Russians Before the Inauguration:
During the 2016 presidential campaign and transition, Donald J. Trump and at least 17 campaign officials and advisers had contacts with Russian nationals and WikiLeaks, or their intermediaries, a New York Times analysis has found. At least 10 other associates were told about interactions but did not have any themselves.
Among these contacts are more than 100 in-person meetings, phone calls, text messages, emails and private messages on Twitter. Mr. Trump and his campaign repeatedly denied having such contacts with Russians during the 2016 election.
The Times report provides a detailed timeline of all these contacts. It is important to remember that candidate Trump received national security briefings during the campaign about the Russian attempts to infiltrate his campaign. Yet there is no apparent record of the Trump campaign ever having alerted the FBI to these contacts from the Russians. The reasonable expectation is that the Trump campaign would have alerted law enforcement. They apparently did not.
As the Barr letter indicates, these were not innocent or merely circumstantial contacts. Mueller apparently did not find sufficient direct evidence of an “agreement” to coordinate or cooperate with the Russians, but this does not address the overwhelming circumstantial evidence that there were possibly parallel independent operations of which the Trump campaign and the Russians were both aware from their numerous contacts that went unreported by the Trump campaign.
How does the Mueller report address these numerous contacts? In particular, the Trump Tower meeting with Russian operatives in June 2016 with Donald Trump, Jr. and Jared Kushner, and the August 2016 meeting between Trump campaign manager Paul Manafort, his deputy Rick Gates, and Putin ally Konstantin Kilimnik to provide Kilimnik with “key information” in the form of internal polling data from the Trump campaign.
There is also the fact that “Prosecutors for Special Counsel Robert Mueller said in court filings that former Trump adviser Roger Stone directly communicated with WikiLeaks and Russian hackers (Guccifer 2.0) who stole thousands of emails from Democrats.” Roger Stone Communicated With Wikileaks And Russian Hackers: Mueller. Stone’s indictment notably said that “a senior Trump Campaign official was directed to contact STONE” about the matter. Yet Roger Stone was not charged as a nexus between the Trump campaign and the Russians or WikiLeaks. How does Mueller explain this apparent contradiction?
Barr’s summary does not address any of these evidentiary issues, but only offers a conclusion.
Even more troubling is the obstruction of justice investigation. A Special Counsel was appointed expressly to avoid the appearance of interference from the Justice Department. And yet Special Counsel Robert Mueller avoided providing a declination to prosecute determination by punting the issue to Attorney General William Barr who, based upon his prior statements about the Mueller probe indicating bias, should have recused himself from ever making such a determination. It was Mueller’s job to make this determination, and he failed to do so. Barr making this determination is a new scandal, in my opinion.
Harry Litman writes at the Washington Post, Three puzzling aspects of Barr’s summary of the Mueller report:
[O]n one of the two central topics from the Mueller report — possible obstruction of justice by President Trump — Barr’s letter leaves unanswered more principal questions than it answers.
The first puzzling aspect of the Barr letter is its report that Mueller, after making a thorough factual investigation of evidence bearing on possible obstruction of justice, “determined not to make a traditional prosecutorial judgment.” Mueller’s report, we are told, is rather perfectly fence-straddling, stating only that “while this report does not conclude that the president committed a crime, it also does not exonerate him.”
So Question No. 1: Why did Mueller, whose charges as a prosecutor include making precisely these sorts of judgments and bringing them to a federal grand jury, decline to do so in this case? Obviously, he was able to reach decisions with respect to the 37 individuals or companies that he charged over the course of his investigation. What extra-prosecutorial considerations caused the famously dutiful and thorough Mueller to leave such a core part of his job unfinished?
Barr’s letter then informs Congress that he and Deputy Attorney General Rod J. Rosenstein decided to step into the breach. Barr writes that Mueller’s decision “to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” But this cryptic statement is really just a description of the gap, not an explanation for why Barr stepped in.
That raises the second critical question: Did Mueller ask Barr to step in? Or is Barr simply asserting a general power to reach conclusions for the Justice Department that Mueller thought he himself couldn’t or shouldn’t? While in some bureaucratic sense, the attorney general, as head of the Justice Department, bears responsibility for all of the department’s decisions, I am unaware of a single instance in my years in the Justice Department in which a final prosecutorial decision was left to the attorney general without so much as a recommendation from the actual prosecutor.
We need to know the answer. If, say, Mueller’s reason for refusing to exercise this judgment was that he believed the involvement of the president made the question a political one for Congress, Barr’s move would represent a rank overruling of a key conclusion of Mueller, as well as a power grab from Congress.
The final unanswered question, and perhaps the most consequential: What was the nature of the analysis that Barr and Rosenstein applied in deciding that Mueller’s evidence was not sufficient to establish that the president committed obstruction? The consensus of many scholars and commentators, based just on the publicly available evidence, has been that the case for obstruction was strong. Did some additional confidential evidence sway Barr and Rosenstein? Was it some particular legal reading of the obstruction statute?
This last possibility is unsettling. Barr’s letter says that he and Rosenstein consulted with the department’s Office of Legal Counsel before coming to their conclusion. This raises the possibility that the Barr analysis is premised on some controversial and expansive view of executive power that neither Congress nor the courts would endorse.
We know that Barr wrote an unsolicited letter to department officials before he took office that could be read to embrace the view that the president cannot obstruct justice while exercising his enumerated powers, such as the pardon power, regardless of his motive for doing so. It would be an outrage if this were the basis for Barr’s and Rosenstein’s decision. That is not simply because the view is thoroughly wrong and discredited — which it is — but because it would effectively preempt, or sharply hamstring, the ability of both coordinate branches to decide the question.
Neal Katyal, the former Assistant Attorney General who wrote the Special Counsel regulations, adds at the New York Times, The Many Problems With the Barr Letter:
[T]he critical part of the letter is that it now creates a whole new mess. After laying out the scope of the investigation and noting that Mr. Mueller’s report does not offer any legal recommendations, Mr. Barr declares that it therefore “leaves it to the attorney general to decide whether the conduct described in the report constitutes a crime.” He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.
Such a conclusion would be momentous in any event. But to do so within 48 hours of receiving the report (which pointedly did not reach that conclusion) should be deeply concerning to every American.
The special counsel regulations were written to provide the public with confidence that justice was done. It is impossible for the public to reach that determination without knowing two things. First, what did the Mueller report conclude, and what was the evidence on obstruction of justice? And second, how could Mr. Barr have reached his conclusion so quickly?
Mr. Barr’s letter raises far more questions than it answers, both on the facts and the law.
His letter says Mr. Mueller set “out evidence on both sides of the question and leaves unresolved what the special counsel views as ‘difficult issues’ of law and fact concerning whether the president’s actions and intent could be viewed as obstruction.” Yet we don’t know what those “difficult issues” were, because Mr. Barr doesn’t say, or why Mr. Mueller, after deciding not to charge on conspiracy, let Mr. Barr make the decision on obstruction.
On the facts, Mr. Barr says that the government would need to prove that Mr. Trump acted with “corrupt intent” and there were no such actions. But how would Mr. Barr know? Did he even attempt to interview Mr. Trump about his intentions?
What kind of prosecutor would make a decision about someone’s intent without even trying to talk to him? Particularly in light of Mr. Mueller’s pointed statement that his report does not “exonerate” Mr. Trump. Mr. Mueller didn’t have to say anything like that. He did so for a reason. And that reason may well be that there is troubling evidence in the substantial record that he compiled.
Furthermore, we do not know why Mr. Mueller did not try to force an interview with the president. The reason matters greatly. Mr. Mueller could have concluded that interviews of sitting presidents for obstruction matters are better done within the context of a congressional impeachment investigation (perhaps because a sitting president cannot be indicted, the Barr letter says this legal argument didn’t influence Mr. Barr’s conclusion but again is pointedly silent as to Mr. Mueller).
Or Mr. Barr could have concluded that the attorney general, not a special counsel, should carry out such an interview. The fact that Mr. Barr rushed to judgment, within 48 hours, after a 22-month investigation, is deeply worrisome.
The opening lines of the obstruction section of Mr. Barr’s letter are even more concerning. It says that the special counsel investigated “a number of actions by the president — most of which have been the subject of public reporting.” That suggests that at least some of the foundation for an obstruction of justice charge has not yet been made public. There will be no way to have confidence in such a quick judgment about previously unreported actions without knowing what those actions were.
On the law, Mr. Barr’s letter also obliquely suggests that he consulted with the Office of Legal Counsel, the elite Justice Department office that interprets federal statutes. This raises the serious question of whether Mr. Barr’s decision on Sunday was based on the bizarre legal views that he set out in an unsolicited 19-page memo last year.
That memo made the argument that the obstruction of justice statute does not apply to the president because the text of the statute doesn’t specifically mention the president. Of course, the murder statute doesn’t mention the president either, but no one thinks the president can’t commit murder. Indeed, the Office of Legal Counsel had previously concluded that such an argument to interpret another criminal statute, the bribery law, was wrong.
As such, Mr. Barr’s reference to the office raises the question of whether he tried to enshrine his idiosyncratic view into the law and bar Mr. Trump’s prosecution. His unsolicited memo should be understood for what it is, a badly argued attempt to put presidents above the law. If he used that legal fiction to let President Trump off the hook, Congress would have to begin an impeachment investigation to vindicate the rule of law.
Sometimes momentous government action leaves everyone uncertain about the next move. This is not one of those times. Congress now has a clear path of action. It must first demand the release of the Mueller report, so that Americans can see the evidence for themselves. Then, it must call Mr. Barr and Mr. Mueller to testify. Mr. Barr in particular must explain his rationale for reaching the obstruction judgment he made.
Former U.S. Attorney Renato Mariotti correctly argues that William Barr Has Some Explaining to Do:
Barr’s decision to reach his own conclusion on this matter was poor judgment and ensures that Congress will fight tooth and nail to gain access to Mueller’s full report and the evidence underlying it.
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Barr’s poor reasoning in the four-page summary will reinforce the conclusion that he prejudged the matter. For example, he claimed that because Mueller was unable to establish that Trump was “involved in an underlying crime,” that suggested that he lacked the intent to obstruct justice. That will come as a surprise to Martha Stewart and many other defendants who were convicted of obstruction of justice but not of any underlying crime. Simply put, that is a fragile reed upon which to support a finding that there was no obstruction.
Barr’s poor judgment means that Congress will have to take steps to find out what is in Mueller’s report and what underlying evidence Mueller found.
Other legal experts agree. Aaron Blake adds at the Washington Post, Legal experts question William Barr’s rationale for exonerating Trump:
There are a few reasons [Barr’s] conclusion is problematic.
The first is Barr’s rationale. Legal experts say it’s odd that he emphasized the lack of an underlying, proven crime, given that’s not necessary for obstruction of justice.
“I think this is the weakest part of Attorney General Barr’s conclusions,” said Jessica Levinson, a professor at Loyola Law School in Los Angeles. “You do not need to prove an underlying crime to prove obstruction of justice. Martha Stewart is quite aware of this fact.”
“For example,” added former federal prosecutor David Alan Sklansky, now of Stanford University, “if the President wrongfully tried to block the investigation into Russian interference in the election because he wanted to protect the Russians, or because he didn’t want people to know that a foreign government had tried to hack the election in his favor, that would constitute obstruction.”
Gene Rossi, another former federal prosecutor, said the lack of an underlying crime does matter. “However, the existence of an underlying crime is not an essential element of the crime of obstruction. End of story,” he said. “To the extent the attorney general suggests such an element, he is dead wrong.”
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Barr’s argument is that the lack of an underlying crime suggests there’s less reason to believe Trump had a “corrupt intent” behind his actions regarding the investigation. But if you set aside collusion, there would seem to be plenty for Trump to want to cover up. Even if these proven and alleged crimes didn’t involve criminal activity by Trump personally, he would seem to have a clear interest in the outcomes of these investigations, both because of his sensitivity about the idea that Russia assisted him and because of the narrative it created of a president surrounded by corruption.
“You don’t need to be guilty of an underlying crime to obstruct an investigation — especially one that might, and in fact did, implicate a number of close associates and aides,” said Jens David Ohlin, a law professor at Cornell University.
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Barr made a determination based on reviewing Mueller’s report for less than 48 hours. In doing so, he invited Democrats to accuse him of going above and beyond for the man who appointed him — and who had, for months and months before then, very publicly resented the fact that his previous attorney general, Jeff Sessions, had recused himself from the investigation.
This is what Barr’s critics feared when the Senate voted to confirm him two months ago. It’s why they urged him to recuse himself from the Russia investigation. And it’s going to be a significant point of contention in the hours and days ahead.
Ultimately, Congress will make its own determinations, and Democrats have signaled that they are not going to let this lie.
It’s time for Congress to issue subpoenas and begin to do its job in earnest.