Thursday, May 2, 2019

The Accurate-But-Incomplete Barr Summary

One of the newest spats to erupt in the continuing saga of the Russia investigation is over Robert Mueller’s letter to Attorney General William Barr regarding his representation of the Mueller team’s findings. As with much of the Russia scandal, the details are sufficiently vague that both sides can claim to be supported by the facts, but Barr’s critics do make valid points. The release of Mueller's letter and Barr's congressional testimony lead to more questions that need to be answered.

To recap the situation for those who came in late, on March 24 Barr released a four-page summary of the Mueller team’s findings. Barr wrote that, with respect to a criminal conspiracy with the Russians, “the Special Counsel did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 presidential election.”  Few, if any, serious observers have problems with this statement.

With respect to the second part of Mueller’s report, the investigation into possible obstruction of justice by the president, Barr quotes the report directly, saying, “While this report does not conclude that the president committed a crime, it also does not exonerate him.” Barr then goes on to say that he and Deputy Attorney General Rod Rosenstein “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.” Barr also notes that this determination was made “without regard to, and is not based on, the constitutional considerations that surround the indictment and prosecution of a sitting president.” Barr further says that Trump’s actions could not be proven to have “corrupt intent” beyond a reasonable doubt. Barr’s defenders argue quite reasonably that nothing that Barr wrote in his summary is inaccurate.

As promised in his summary, Barr released a redacted version of the Mueller report on April 18. Readers quickly discovered that while Barr had not misstated any facts in his summary, the facts that he had chosen not to mention changed the characterization of what Mueller and his investigators had determined. Where Barr correctly said that Mueller found no evidence of a criminal conspiracy by the Trump campaign, Mueller’s report found tacit approval of Russia’s actions by the campaign, prefacing its exoneration with the statement, “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…” But this was not criminal behavior. Fair enough.

Barr’s characterization of the obstruction investigation is more problematic. Barr omitted two very important points from Mueller’s failure to find indictable actions by President Trump. First, Barr ignored Mueller’s statement that the report did not make a prosecutorial judgment because the team “accepted OLC’s legal conclusion” 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.’”

Second, Barr omitted Mueller’s statement that “Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.” This statement, paired with the statement that, “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,” contradicts Barr’s determination that no prosecutable obstruction occurred. Given abuses of power in the examples cited by the report, President Trump’s actions might rise to the level of impeachable offenses even if Barr is correct that they were not prosecutable.

While Mueller did not specifically state that Trump’s actions were impeachable offenses, he seems to have hinted at that possibility. The reference to corruption refers to a “subversion of the political process” and an “act done with intent to give some advantage inconsistent with official duty and the rights of others.” The Constitutional Rights Foundation points out that the “high crimes and misdemeanors” cited in the Constitution as grounds for impeachment don’t necessarily require a finding of illegality. In English law that was familiar to the framers of the Constitution, the phrase had been applied to remove officials from office on a variety of charges, some that were criminal and some that were not. “The one common denominator in all these accusations was that the official had somehow abused the power of his office and was unfit to serve,” the Foundation notes.

Immediately after the release of Barr’s summary, President Trump took to Twitter to claim, “No Collusion, No Obstruction, Complete and Total EXONERATION.” This tweet explicitly contradicts Mueller’s findings on obstruction. Conservative media outlets picked up the message and trumpeted what they saw as Trump’s vindication.

What we now know is that after Barr released his summary, Mueller sent the attorney general a private letter behind the scenes. In the letter, Mueller stated that the “summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office's work and conclusions.” He wrote that the discrepancy had led to “public confusion about critical aspects of the results of our investigation.” The obvious conclusion is that the confusion that Mueller referred to was the fact that Trump and his supporters were claiming exoneration where the Mueller team failed to find it and specifically pointed out that fact.

Ben Shapiro has said that Mueller was wrong to complain about Barr’s characterization of the report. In Shapiro’s view, the details that the report includes serve only to embarrass the president in the absence of a finding that Trump broke the law. He points out that the details can be found in the publicly released report and were irrelevant to Barr’s summary. This is wrong for two reasons. First, a finding that the president acted corruptly enough that he could not be exonerated deserves a detailed explanation, especially when the president is claiming “no obstruction” and “total exoneration.” Second, at the time Mueller wrote his letter on March 27, the report was not public and there was no way to counter the president’s claims.

Even before this week’s release of the Mueller letter, there were rumblings that Mueller’s investigators were unhappy with Barr’s synopsis of their work. On April 3, the New York Times reported some members of Mueller’s team had said that Barr’s summary failed to accurately reflect their findings.

In his testimony yesterday, Barr said that Mueller told him that he was frustrated with the way the media was portraying the report and that “he was not suggesting that we had misrepresented his report.” It seems likely that Mueller’s problem was with the way that Trump-friendly media was covering the report as an exoneration of Trump rather than the mainstream media parsing the words of Barr’s letter.

The current state of affairs leaves a number of unanswered questions. First, is whether Barr’s failure to find obstruction legally accurate. Several conservative legal scholars such as Judge Andrew Napolitano, Reagan Justice Department official and current Republican candidate Bill Weld, law professor Mimi Rocah and former federal prosecutor Renato Mariotti dispute Barr’s (and Shapiro’s) interpretation of the obstruction statutes.

Second, there is the question of whether Barr intentionally tried to gloss over the parts of the Mueller report that were more damaging to President Trump. A follow-up to this question is whether the instances of Trump’s obstructive behavior cited in the report would have been redacted if it had not been likely that Mueller would have gone public with his objections.

Finally, there is the question of Mueller’s side of the story. Does Mueller agree that Barr’s summary was an accurate representation of the special counsel’s findings? If so, why did he send a written complaint? Barr suggested to House members that Mueller’s letter was “a bit snitty, and I think it was probably written by one of his staff people.” If so, why did Mueller sign it?

When the big picture is examined, it is apparent that while Barr’s summary was factually accurate, it did omit important aspects of Mueller’s report. These omissions changed the characterization of Mueller’s findings that “the evidence we obtained about the President's actions and intent presents difficult issues” to Barr’s determination that “the report identifies no actions… done with corrupt intent.” The only way to resolve these discrepancies and know exactly what Mueller and his investigators took issue with is to have Mueller testify.

Originally published on The Resurgent

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