As the messenger who first announced the outcome of the Mueller investigation, Attorney General William Barr has been thoroughly demonized by those unhappy with the message. Among other things, they accuse him of torching his reputation, lying to Congress, and even losing his soul. There are calls to impeach him, prosecute him for perjury, and lock him up in the capitol basement for contempt of Congress.
These unhinged attacks sprung initially from Barr’s March 24 letter conveying the Mueller report’s two main bottom lines: its unequivocal conclusion that Trump was not complicit in Russian election interference and its more equivocal conclusion (or non-conclusion) to neither charge Trump with obstruction of justice nor “exonerate” him. Critics claim that Barr’s letter misrepresented the report. They also criticize Barr’s determination announced in the letter that Mueller’s evidence was insufficient to establish an obstruction offense. The attacks have persisted weeks after release of the redacted but largely complete report.
No doubt the war against Barr reflects frustration over the results of Mueller’s investigation–that it put to rest the “collusion” narrative Democrats and much of the media relentlessly flogged for the past two years and that it stopped short of accusing Trump of a crime. There’s also considerable angst over where to take these issues now. Some on the right suggest that targeting Barr is a ploy to deter him from inquiring into the origins and initial phases of the Russian interference investigation. Whatever their motive(s), the attacks on Barr are spurious.
Barr’s March 24 letter accurately and fairly captured the two main bottom lines of Mueller’s report
Once word got out that Mueller’s report was done, Barr came under intense pressure to disclose something about it right away. Immediately releasing the full 448-page report or even its executive summaries was not an option since both needed review for redactions. Saying nothing would have generated a flood of criticism from all sides. Faced with this dilemma, Barr issued his March 24 letter reciting Mueller’s two “principal conclusions” as stated above.
The main criticism of Barr’s letter is that it failed to capture the many negative aspects of Trump’s behavior detailed in the report. However, the letter did not purport to be a summary of Mueller’s report; it simply announced Mueller’s bottom-line conclusions. Barr’s descriptions of Mueller’s bottom lines are entirely faithful to the report; he quoted them verbatim. By including Mueller’s statement that the investigation did not “exonerate” Trump, Barr clearly telegraphed that the report had significant negative content about him. If Barr wanted to mislead, he could have omitted this caveat and said only that Mueller did not charge Trump with obstruction. It’s also noteworthy that the report contained no “bombshells” that Barr omitted. Its content on obstruction primarily validates and fleshes out incidents involving Trump that were already widely known through Trump’s public statements and media-reported leaks.
Critics make much of Mueller’s March 27 letter to Barr, leaked on the eve of Barr’s testimony before the Senate Judiciary Committee. In it, Mueller complained that Barr’s letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions” (presumably on obstruction) and, as a result, “[t]here is now public confusion about critical aspects of the results of our investigation.” Mueller enclosed redacted versions of the introduction and executive summaries of his report and urged Barr to release them immediately. But Barr says Mueller assured him in a subsequent phone call that nothing in Barr’s letter was inaccurate or misleading; instead, according to Barr, Mueller was concerned about “misguided” media coverage. Barr also says Mueller declined his offer to review the letter in advance. Had Mueller accepted, he could have made known any concerns he had and worked with Barr to produce a mutually acceptable statement.
More fundamentally, the source of confusion over Mueller’s conclusion on obstruction is Mueller’s own curious treatment of this question, not anything Barr said about it. Indeed, this confusion has only intensified with release of the report. The report (II-1-2) says Mueller’s approach was heavily influenced by the Justice Department position that a sitting president cannot be criminally indicted but does not say he would have found criminal conduct but for this position. It goes on to say (II-2):
“[I]f 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 applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”
All of this hardly cleared the air on obstruction. Mueller did essentially the opposite of what everyone assumed his role to be: He declined to decide whether or not the evidence could prove beyond a reasonable doubt that Trump committed a crime but opted to decide instead whether it conclusively proved his innocence. This strange approach has left politicians, pundits and the general public pretty much where they were before the report—still debating the obstruction question, usually along familiar pro- versus anti-Trump lines. (Hopefully, Mueller will eventually appear before Congress to clarify this and other aspects of his investigation and report.)
Barr appropriately made the prosecutorial decision on obstruction and his decision is sound on its merits.
Barr’s March 24 letter observed that Mueller’s failure to reach a traditional prosecutorial decision on obstruction left it to him to make this call. He then stated that he and Deputy Attorney General Rosenstein, in consultation with other Justice officials, “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.”
Critics question Barr’s determination on obstruction and, remarkably, even his right to make it. Taking the second point first, Barr clearly had both the right and responsibility to decide when Mueller wouldn’t. The notion advanced by some that Mueller didn’t “intend” for Barr to do so but instead wanted Congress to decide on obstruction in the context of impeachment is unsupported by the report and ludicrous on its face. Deciding whether Trump (or anyone else) has committed a federal crime warranting prosecution is manifestly the responsibility of the Justice Department. That responsibility ultimately rests with the Attorney General. Mueller’s “intent” is immaterial, although he surely understood this. (His March 27 letter did not question Barr’s decision on obstruction.)
Turning to the merits, it’s easy to argue, as many have, that aspects of Trump’s behavior described in the report align at least conceptually with the legal elements of obstruction. However, deciding whether to bring a criminal prosecution is a judgment call that entails more than conceptual box-checking. The key question is whether the government can prove each element of the offense beyond a reasonable doubt to the satisfaction of an impartial jury. The Mueller report itself (II-7) points to several complications in prosecuting an obstruction case against Trump. Some of the incidents the report describes occurred in public view and were “facially lawful acts” under the president’s constitutional authority. Also, there was no underlying crime. The report notes that while the absence of an underlying crime does not preclude an obstruction prosecution, it does bear on the question of intent.
There is, however, another consideration that makes successful prosecution of Trump highly unlikely: Trump took no concrete action to obstruct the investigation. He railed against the investigation from start to finish, viewing it (perhaps with some justification as it turns out) as a contrived effort by his opponents to undercut the legitimacy of his presidency. In the course of his often impulsive rants, he threatened to take various actions against it. However, Trump never followed through on any of these threatened actions although he certainly had the ability to carry them out.
The case for prosecuting Trump is based almost entirely on what he said, not what he did. For example, Trump asked Comey to go easy on Flynn but did nothing when Comey persisted; he urged Sessions to “unrecuse” himself and limit the scope of the investigation but did nothing when Sessions failed to do either; he demanded that subordinates fire Mueller but did nothing when they disregarded him. Obviously, he knew his wishes were not being carried out in these instances.
The only action Trump took potentially relating to the investigation was firing Comey. But the Mueller report (II-74) questions whether this had a predictable effect of impeding the investigation (in fact, of course, it had the opposite effect). In any event, the report (II-75) also indicated that the catalyst for firing Comey was not a desire to impede the investigation but Trump’s displeasure over Comey’s refusal to publicly acknowledge what he privately told Trump—that Trump was not a target.
Given these facts, how could a jury find beyond a reasonable doubt the requisite corrupt intent to convict Trump of obstruction? If Trump was intent on obstruction, he could have and surely would have carried out at least some of his potentially obstructive threats.
Making prosecution even more dubious, the White House provided extraordinary cooperation to Mueller. This couldn’t have happened without Trump’s acquiescence. Remarkably, Trump allowed White House Counsel McGahn to undergo 30 hours of questioning by Mueller’ investigators. (His testimony is widely considered the most damaging to Trump of all the evidence Mueller developed.) A president bent on obstruction never would have allowed his White House counsel to be interrogated by the investigators. Instead, he would have invoked executive privilege and otherwise stonewalled the investigators’ access to White House staff and records.
Why do Democrats continue to persecute Barr?
While Barr might have handled some things differently, he did nothing that calls into question his honesty or integrity. But even if Democrats disagree, the salient question for them at this point should be what the Mueller report means in relation to Trump, not Barr, and specifically whether it provides a basis for impeachment. Instead, they still have their guns trained on Barr. House Judiciary Democrats rejected Barr’s offer to testify before them based on an unusual demand that committee staffers participate in the questioning. (This came complete with silly theatrical stunts.) Then they voted to hold Barr in contempt for refusing their demand for the few remaining redacted lines of the Mueller report they can’t already see—a demand Barr probably can’t legally meet because these lines contain grand jury information. They are now considering physically arresting Barr and locking him up in the capitol basement jail.
Most likely the continuing assaults on Barr are diversionary or temporizing tactics by Democrats to forestall their day of reckoning on impeachment. That’s perhaps understandable. While the Democratic left flank is intent on impeaching Trump, cooler heads apparently recognize the lesson of the Clinton impeachment fiasco: Attempting to remove a sitting president without bipartisan and broad public support (which is lacking here) is folly both substantively and politically. It rightly comes across as nothing but a partisan coup to undo the result of a legitimate election and makes us look like a banana republic.