From well before he stepped into the role of attorney general, William Barr has made it clear that he regards his job to be protecting Trump and … nothing else. The technical description of Barr’s position might not call him Trump’s lead defense attorney, but that’s obviously how Barr has interpreted his role. The release of the Mueller report this week, even in a form still carrying a plethora of redactions, reveals just how ridiculous, disgraceful, and fundamentally dishonest Barr’s letter to Congress claiming to summarize the findings of the report really was.
The Mueller report already contained summaries for the areas of both Russian interference and obstruction of justice. But even if Barr determined that these summaries were too lengthy for his audience, it’s not difficult to assemble a summary of each area that’s a far more accurate reflection of the report’s contents. Of course, a blank page would be a better summary. Or a random selection from Crime and Punishment. Because, even for those who anticipated as much, it’s hard to contemplate just how far Barr’s “summary” of the report falls from the report’s actual content. Supposedly comedic assessments of what could be on the other end of phrases and fragments Barr cherry-picked for his letter turned out to be all too accurate.
As an exercise, here’s a quick review of what Barr told Congress, compared to a more accurate assessment of the contents.
William Barr
The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 US. presidential election. As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
In Barr’s letter, only a fraction of a single sentence comes from the report he is supposedly summarizing, and that fragment is framed completely differently than it is in the report. Here’s how the same segment might have looked had Barr been interested in reporting to Congress truthfully, rather than in a way that cast the best light on Donald Trump by hiding the findings of the special counsel team.
Accurate Mueller
The investigation established that several individuals affiliated with the Trump Campaign lied to the Office, and to Congress, about their interactions with Russian-affiliated individuals and related matters. Those lies materially impaired the investigation of Russian election interference. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office's judgment, appropriate candidates for grants of immunity. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete.
Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated-including some associated with the Trump Campaign---deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. Accordingly, while this report embodies factual and legal determinations that the Office believes to be accurate and complete to the greatest extent possible, given these identified gaps, the Office cannot rule out the possibility that the unavailable information would shed additional light on the events described in the report.
Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
In our Accurate Mueller summary, all of the text comes from the actual Mueller report, and it reflects the report’s real conclusions: The investigation was unable to convict anyone on a narrow definition of conspiracy, after an investigation impeded by lies, withholding, and destruction of evidence.
William Barr
The Special Counsel’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. Over the course of the investigation, the Special Counsel’s office engaged in discussions with certain Department officials regarding many of the legal and factual matters at issue in the Special Counsel’s obstruction investigation. After reviewing the Special Counsel’s final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made Without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.
What Barr is telling here is a lie and a half. The actual report concludes that Trump’s actions definitely would constitute obstruction if committed by anyone else. The only questions to be debated are whether Trump’s Article II powers protect him from charges of obstruction, and who has the ability to resolve that issue. Barr quickly claims that right, though there is nothing in either the analysis or the summary that suggests he has the authority to make the decision—in fact, Barr is prevented from doing so because he’s under the same constraints that prevented Mueller from reaching a decision.
And while Barr claims that the question of the inability to charge Trump under DOJ rules did not affect his decision, what he doesn’t say is that it was front and center in the reason that Mueller did not charge Trump at the outset.
Accurate Mueller
The Office of Legal Counsel (OLC) has issued an opinion finding that "the indictment
or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions" in violation of "the constitutional separation of powers." Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel ... this Office accepted OLC's legal conclusion for the purpose of exercising prosecutorial jurisdiction.
If we had confidence after a thorough investigation of the facts that the President
clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.
In sum ... an argument that the conduct at issue in this investigation falls outside the scope of the obstruction laws lacks merit.
Although the President has broad authority under Article II, that authority coexists with Congress's Article I power to enact laws that protect congressional proceedings, federal investigations, the courts, and grand juries against corrupt efforts to undermine their functions.
The conclusion that Mueller reaches is that it is “without merit” to say that Trump’s behavior doesn’t fall under laws concerning obstruction—and in fact, he provides a list of 10 categories of obstruction carried out by Trump. What’s in doubt is Mueller’s ability “as an attorney in the Department of Justice” to act on Trump’s violations of law and to make the determination that they fall outside Trump’s constitutional executive privilege.
By taking this authority on himself, Barr acted quickly to protect Trump—and to prevent the full exploration of what was clearly intended as a problem to be handed to Congress.
