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The Brian Lehrer Show – Mueller Aftermath Analysis

(23:51) Barr could have easily released the Mueller Report Executive Summary much sooner.

The fact that it was withheld allowed a false narrative to take hold.

How Barr’s Excerpts Compare to the Mueller Report’s Findings

Attorney General William P. Barr sent a letter to Congress last month citing brief fragments from the Mueller report. Now that the document is public, his selections are coming under scrutiny.

Mr. Barr took Mr. Mueller’s words out of context to suggest the president had no motive to obstruct justice

“In making this determination, we noted that the special counsel recognized that ‘the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the president’s intent with respect to obstruction.”

Vol. II, Page 157: Obstruction of justice can be motivated by a desire to protect noncriminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the president was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the president’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians could be seen as criminal activity by the president, his campaign or his family.

Mr. Barr, in explaining why he was declaring Mr. Trump cleared of obstructing justice, cited this sentence fragment about how the evidence Mr. Mueller had gathered did not prove there had been any conspiracy with Russia for Mr. Trump to cover up. This use of Mr. Mueller’s words turned the special counsel’s meaning on its head: The brief excerpt came from a list of other possible reasons Mr. Trump might have had to corruptly impede the investigation, and which Mr. Barr did not mention.

Mr. Barr omitted words suggesting that there was complicit conduct that fell short of “coordination”

FROM WILLIAM P. 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 U.S. 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.’”

FROM ROBERT S. MUELLER III

Vol. I, Page 1:The investigation also identified numerous links between the Russian government and the Trump campaign. 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.

Mr. Barr took a larger passage in which the Mueller report suggested that the Trump campaign and the Russian government were knowingly dancing together at a distance, and then excerpted a fragment to make it look like a cleaner exoneration.

Similarly, Mr. Barr truncated the special counsel explanation of what “coordination” meant — and didn’t mean

“In assessing potential conspiracy charges, the special counsel also considered whether members of the Trump campaign ‘coordinated’ with Russian election interference activities. The special counsel defined ‘coordination’ as an ‘agreement — tacit or express — between the Trump campaign and the Russian government on election interference.’”

FROM ROBERT S. MUELLER III

Vol. I, Page 2:We understood coordination to require an agreement — tacit or express — between the Trump campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other’s actions or interests.

In the second sentence, which Mr. Barr omitted, Mr. Mueller again emphasized that there can be a type of complicit conduct that falls short of how the special counsel defined coordination.

Mr. Barr omitted the reason Mr. Mueller trumpeted the thoroughness of his factual investigation

FROM WILLIAM P. BARR

“After making a ‘thorough factual investigation’ into these matters, the special counsel considered whether to evaluate the conduct under department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.”

FROM ROBERT S. MUELLER III

Vol. II, Page 2: Second, while the O.L.C. opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible. The O.L.C. opinion also recognizes that a president does not have immunity after he leaves office. And if individuals other than the president committed an obstruction offense, they may be prosecuted at this time. Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

In his letter to Congress, Mr. Barr did not explain that Mr. Mueller was trying to leave open the possibility that prosecutors in the future, after Mr. Trump leaves office, could look at the evidence he gathered and decide then whether to indict Mr. Trump. That rationale — which stemmed from the view of the Justice Department’s Office of Legal Counsel, or O.L.C., that sitting presidents cannot be indicted but former presidents lose such immunity — conflicted with Mr. Barr’s move to pronounce Mr. Trump cleared now.

Mr. Barr portrayed Mr. Mueller as encountering “difficult issues” in reaching a decision on obstruction

FROM WILLIAM P. BARR

“The special counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets 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. The special counsel states that ‘while this report does not conclude that the president committed a crime, it also does not exonerate him.’”

Mr. Mueller used those two phrases twice, in slightly different formulations:

FROM ROBERT S. MUELLER III

Vol. II, Page 2: Fourth, 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. 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.

Vol. II, Page 8: Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the president’s conduct. The evidence we obtained about the president’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, 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, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.

In his letter, Mr. Barr did not explain why the special counsel had demurred from making any prosecutorial judgment on obstruction beyond a cryptic reference to what he said Mr. Mueller had described as “difficult issues” of law and fact. His suggestion was that these unspecified issues prevented Mr. Mueller from making a call “one way or the other.” In fact, Mr. Mueller made clear that the difficulties resided in accusing Mr. Trump of committing a crime; if the facts had exonerated him, he would have been willing to say so.

William Barr’s Testimony, and Reasons to Be Snitty

said, ‘Bob, what’s with the letter?’ ” Attorney General William Barrrecounted in his testimony before the Senate Judiciary Committee on Wednesday. “ ‘Why don’t you just pick up the phone and call me if there’s an issue?’ ” Bob—that is, Robert Mueller, the special counsel in charge of the investigation into Russian efforts to interfere in the 2016 election—had sent Barr the letter on March 27th, three days after Barr had released his own letter purporting, in four pages, to convey the principal conclusions of Mueller’s more than four-hundred-page report. Mueller had been fairly clear about what was, as Barr put it, with the letter: Barr’s statement “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” And, in its wake, there was “now public confusion.” Barr told Senator Richard Blumenthal, Democrat of Connecticut, that the letter had prompted him to call Mueller, on speaker phone, while several people, including Deputy Attorney General Rod Rosenstein, were in the room with him. As Blumenthal questioned Barr about his subsequent exchange with Mueller, Barr picked up what appeared to be a copy of Mueller’s letter and gave it a sour scan. “The letter’s a bit snitty,” he said. “I think it was probably written by one of his staff.”

“Snitty” is a word of relatively recent origin; Merriam-Webster traces the appearance of the underlying noun, “snit,” to 1939. It echoes something of the meaning of snipe and snip, and even snitch—of pettiness and petulance. It hardly seems right as a way to describe the concerns that Mueller—a man with a long and distinguished career in law enforcement—had about a possible blow to public confidence in his investigation, or in the Justice Department, or in both. And yet the complaint perfectly expresses the culture of the Trump Administration. Calling people “snitty” is a way of accusing them of being weak, mewling, and rule-bound, with a pathetic belief in fairness. It’s the bully’s retort upon being called out—expressing the same resentment that might, say, lead a President to commit what the Mueller report refers to as potentially “obstructive acts.” “Snitty” is used to conjure up the image of people whom one would rather ignore stamping their feet—which may be why Barr joined it with the supposition that the letter Mueller signed was written “by one of his staff.”

The question of what “staff” might be capable of was, it seems, already on Barr’s mind. After the Senate hearing, it emerged that he had decided not to appear at a parallel hearing in the House, scheduled for Thursday, supposedly because he objected to being questioned by lawyers on the committee staff rather than by the representatives themselves. The committee is responding with a flurry of subpoenas; the issue of the Trump Administration’s evasions of congressional oversight is not a new one, and it won’t go away. But Barr does a particularly bad job of hiding his disdain. At one point, Blumenthal asked him if anyone had taken notes of the “what’s with the letter” call. Barr confirmed that some people had done so. “May we have those notes?” Blumenthal asked.

“No,” Barr replied.

“Why not?” Blumenthal asked.

“Why should you have them?” Barr said.

Who do these senators think they are? Barr’s own recollection of the call was an exercise in blame. According to Barr, Mueller said that he was “concerned about the way the media was playing this” and wanted his executive summaries released in order to “avoid some of the confusion that was emerging.” Barr continued, “I asked him if he felt that my letter was misleading or inaccurate, and he said no, that the press—he felt that the press coverage was.” At this point, Barr has shown himself to be enough of an unreliable narrator that it makes sense to wait and learn if this is also Mueller’s recollection. (Mueller does not specifically mention the press in his letter.) But it is worth asking what Barr is saying here about the press: the coverage, up until then, was based only on his four-page letter. If the coverage was inaccurate or misleading, how might that have happened—was the press making things up? Barr doesn’t appear to mind implying that reporters either are incapable of basic reading comprehension or just act in bad faith. Earlier in the hearing, Senator John Kennedy, Republican of Louisiana, also raised what he called “the news-coverage issue” and asked Barr, “What were you supposed to do about that?” Noting that the report was now out, the senator called the whole matter moot and added, “None of us can control what the news publishes or prints, except the media.” Nor should anyone—but it would be helpful, sometimes, if the press had truthful material to work with. And Congress might do something about that.

The Catastrophic Performance of Bill Barr

The attorney general misled the public in seven key ways.

was willing to give Bill Barr a chance. Consider me burned.

When Barr was nominated, I wrote a cautious piece for this magazine declining to give him “a character reference” and acknowledging “legitimate reasons to be concerned about [his] nomination,” but nonetheless concluding that “I suspect that he is likely as good as we’re going to get. And he might well be good enough. Because most of all, what the department needs right now is honest leadership that will insulate it from the predations of the president.”

When he wrote his first letter to Congress announcing the principal conclusions of the Mueller report, I wrote another piece saying, “For the next two weeks, let’s give Attorney General William Barr the benefit of the doubt” on the question of releasing the report in a timely and not-too-redacted fashion.

I took a lot of criticism for these pieces—particularly the second one, in which I specifically said we should evaluate Barr’s actual performance in regard to releasing the Mueller report, and thus wait for him to act, rather than denouncing him preemptively.

Barr has now acted, and we can now evaluate his actual, rather than his hypothesized, performance.

It has been catastrophic. Not in my memory has a sitting attorney general more diminished the credibility of his department on any subject. It is a kind of trope of political opposition in every administration that the attorney general—whoever he or she is—is politicizing the Justice Department and acting as a defense lawyer for the president. In this case it is true.
Barr has consistently sought to spin his department’s work in a highly political fashion, and he has done so to cast the president’s conduct in the most favorable possible light. Trump serially complained that Jeff Sessions didn’t act to “protect” him. Matthew Whitaker never had the stature or internal clout to do so effectively. In Barr, Trump has found his man.

Ironically, the redactions on the report—the matter on which I urged giving Barr the benefit of the doubt—are the one major area where his performance has been respectable. On this matter, he laid out a time frame for the release of the report. He met it. His redactions, as best as I can tell, were not unreasonable, though they were aggressive in some specific areas. To whatever extent he went overboard, Congress has a far-less-redacted version. The public, in any event, has access to a detailed account of Mueller’s conclusions. On this point, Barr did as he said he would.

Where Barr has utterly failed, by contrast, is in providing “honest leadership that insulates [the department] from the predations of the president.” I confess I am surprised by this. I have never known Barr well, but I thought better of him than that.

The core of the problem is not that Barr moved, as many people worried he would, to suppress the report; it is what he has said about it. I have spent a great deal of time with the Mueller report, about which Barr’s public statements are simply indefensible. The mischaracterizations began in his first letter. They got worse during his press conference the morning he released the document. And they grew worse still yesterday in his testimony before the Senate Judiciary Committee.

Barr did not lie in any of these statements. He did not, as some people insist, commit perjury. I haven’t found a sentence he has written or said that cannot be defended as truthful on its own terms, if only in some literal sense. But it is possible to mislead without lying. One can be dishonest before Congress without perjury. And one can convey sweeping untruths without substantial factual misstatement. This is what Barr has been doing since that first letter. And it is utterly beneath the United States Department of Justice.

The dishonesty only begins with the laughably selective quotation of Mueller’s report in Barr’s original letter, the scope of which Charlie Savage laid out in a remarkable New York Times article shortly after the full report was released. I urge people to look at Savage’s side-by-side quotations. The distortion of Mueller’s meaning across a range of areas is not subtle, and it’s not hard to understand why Mueller himself wrote to Barr saying that the attorney general’s letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”

Barr, before the Senate yesterday, described the letter as “snitty.” Actually, it was generous. As Paul Rosenzweig summarized the situation on Lawfare, “the excerpts of the report contained in Barr’s original summary letter are at best a favorable spin on the report and at worst a rather transparent effort to mislead the public in advance of the report’s release.”

But selective quotation is actually only one of the means by which Barr is misstating Mueller’s findings. Here I want to focus on the substantive content of his mischaracterization of them—that is, not how he is doing it, but what Barr is doing.

As I read them, Barr’s public statements on the report reflect at least seven different layers of substantive misrepresentation, layers which build on one another into a dramatic rewriting of the president’s conduct—and of Mueller’s findings about the president’s conduct. It is worth unpacking and disentangling these misrepresentations, because each is mischievous on its own, but together they operate as a disinformation campaign being run by the senior leadership of the Justice Department.

The first element is Barr’s repeated conflation of that which Mueller has deemed to be not provable to the exacting standards of criminal law with that which is not true at all or for which there is no evidence. Mueller determined that the evidence “did not establish” Trump-campaign participation in a criminal conspiracy with the Russians to interfere in the 2016 presidential election. Mueller also makes clear that when his report describes that “the investigation did not establish particular facts,” this “does not mean there was no evidence of those facts.”

Yet Barr frequently talks as though Mueller found nothing of concern with respect to the underlying conduct on the part of the Trump campaign. “So that is the bottom line,” Barr said at his press conference. “After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the special counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.”

Barr began his next sentence with, “After finding no underlying collusion with Russia …” Note his shift. In the first iteration, Barr is describing—accurately, if generously—that Mueller “did not find” something. By the second, however, he has pivoted to imply that Mueller found it didn’t happen. Barr vacillates in his public statements frequently from such careful, lawyerly descriptions of what Mueller did not find or establish to sweeping statements of vindication for Trump and his campaign.

The text of the Mueller report leads me to suspect that Mueller does not share Barr’s cavalier attitude toward the voluminous contacts between Russians and Trump-campaign figures and the positive enthusiasm for, and pursuit of, hacked emails on the part of the campaign. Had Mueller found no evidence of conspiracy, rather than insufficient evidence, he would have said so.
Barr’s second sleight of hand—also visible in the quotations above—is rendering the absence of a criminal-conspiracy charge as reflecting an active finding of “no collusion.” These two are very different matters. Conspiracy is a criminal charge. Collusion is a colloquial claim about history. Yet Barr, at his press conference, actually said that “there was in fact no collusion.” He used the phrase no collusion over and over. He even described it as the investigation’s “bottom line.”

In other words, Barr is not merely translating the absence of sufficient evidence for charges into a crime’s not taking place; he is translating the crime’s not taking place into an absence of misconduct in a more colloquial sense. He is also using the president’s specific talking point in doing so. This pair of mischaracterizations has the effect of transforming Trump into an innocent man falsely accused.

Barr amplifies this transformation with his third layer of misrepresentation: his adoption of Trump’s “spying” narrative, which states that there was something improper about the FBI’s scrutiny of campaign figures who had bizarre contacts with Russian-government officials or intermediaries. Barr has not specified precisely what he believes here, but yesterday’s Senate hearing was the second congressional hearing at which he implied darkly that the FBI leadership under James Comey had engaged in some kind of improper surveillance of the Trump campaign. In other words, not only is the president an innocent man falsely accused, but he’s now the victim of “spying on a political campaign”—as Barr put it a few weeks ago—by a biased cabal running the FBI.

To evaluate these allegations, we will have to await a forthcoming inspector general’s report on the matter. And Barr has promised some kind of review of his own as well. Suffice it for the present to say that I have seen no evidence to support these suggestions, which imply a kind of politically motivated “witch hunt” against Trump. Again, Barr is supporting political tweeting points of the president.

And here’s the fourth layer of misrepresentation. Barr has repeatedly insisted that our long-suffering president fully cooperated with the investigation, notwithstanding its illegitimate birth and the fact that there was nothing to any of the allegations it investigated. “The White House fully cooperated with the special counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims,” he said at his press conference.

I suspect this would also come as a surprise to Mueller, who might point out that

Trump tried to get witnesses not to cooperate—dangling pardons and

seeming to threaten their families with investigation if they “flipped.” Mueller might point out that

Trump tried to fire Mueller for conflicts that his own staff regarded as “silly” and “ridiculous.” Mueller might point out that

Trump tried to rein in his jurisdiction, limiting him to the investigation of future electoral interference. Mueller might point out that

Trump refused to sit for an interview and, even in written answers, refused to address questions concerning allegations of obstruction of justice. I say “might,” but Mueller actually did point all these things out in his report. Ignoring this reflects an astonishing conception of cooperation from the nation’s top prosecutor.

Fifth, it is on the collective back of these prior misrepresentations that Barr rests his particularly generous interpretation of intent in considering questions of obstruction. It is hard to read Mueller’s account of the president’s conduct as reflecting chiefly noncorrupt motives. But if you first adopt the fiction that the investigative subject is an innocent man falsely accused and being pursued by politically motivated FBI agents engaged in improper “spying,” and that he is nonetheless endeavoring in good faith to cooperate with his prosecutors, that does change the lens through which you look at his conduct. One might then indeed tend toward forgiving interpretations of the occasional eruption of anger.

One might then find, as Barr did in Mueller’s report, “substantial evidence … that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” And one might then find that evidence of such “non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.” The trouble is that if you don’t first adopt these conceits, the weight of the evidence Mueller cites on intent really doesn’t push in that direction. It pushes in exactly the opposite direction.

Barr adopts, sixth, a related mode of obfuscation with respect to obstruction, which is to disaggregate all the episodes Mueller considers and view them in isolation from one another. Mueller specifically urged that the pattern of behavior was important. “Although the events we investigated involved discrete acts,” he wrote, “it is important to view the President’s pattern of conduct as a whole. That pattern sheds light on the nature of the President’s acts and the inferences that can be drawn about his intent.”
Indeed, it is very hard to look at Trump’s behavior toward the investigation over two years and not see malign intent. But isolate any specific fact pattern among the 10 Mueller describes, and you can diminish it. Look at any one in isolation, and—particularly if you have Barr’s hard-line views of presidential power—you might see a facially legitimate exercise of that power for which there is a plausible noncorrupt motive to which Mueller has indeed scrupulously nodded. If you miss the forest for the trees, you will miss the deforestation as well.

Finally, Barr conflates Mueller’s decision not to evaluate presidential obstruction with a decision on his part that the evidence is insufficient to find that Trump committed crimes. This is a very important misdirection on Barr’s part, because it allows him to imply not merely that he does not believe that the president committed crimes, but that Mueller does not, either.

Both at the press conference and in yesterday’s hearing, the attorney general insisted that Mueller had told him that it was not merely the Justice Department’s legal opinion stating that the president could not be indicted that prevented him from concluding that Trump had obstructed justice. “He made it clear that he had not made the determination that there was a crime” but for the opinion, Barr said at the press conference. The implication is that the issue was not just one of legal authority, but that the evidence wasn’t there either.

I don’t know what Mueller told Barr privately, but the report does not support this claim. Mueller lists four “considerations that guided our obstruction-of-justice investigation.” The first of them states that the Justice Department “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.’” Because Mueller is an officer of the Justice Department, “this Office accepted [the department’s] legal conclusion for purposes of exercising prosecutorial jurisdiction.”

The use of the word jurisdiction here is not casual. It means that Mueller believes he lacks the authority to indict the president. Because of that, he goes on to explain, he did not evaluate the evidence to render a traditional prosecutorial judgment. The report offers no support for the notion that Mueller stayed his hand on obstruction out of concern for the strength of the evidence.

The effects of these layers of mischaracterization are to rewrite the Mueller report and to recast the presidential conduct described in it. The direction of the recasting just happens to dovetail with the president’s talking points, and just happens to transmute him from a scofflaw with power into a victim of the “deep state.”

The mystery is why Barr is doing this. In an op-ed yesterday in The New York Times, Comey offered one hypothesis, writing that “amoral leaders have a way of revealing the character of those around them” and that “proximity to an amoral leader reveals something depressing. I think that’s at least part of what we’ve seen with Bill Barr and Rod Rosenstein. Accomplished people lacking inner strength can’t resist the compromises necessary to survive Mr. Trump and that adds up to something they will never recover from.”

This may be right. It may be the case that Barr knows that he’s spinning, and that he’s doing it—having had his soul eaten by Trump “in small bites,” in Comey’s poetic formulation—to preserve his position in the mad king’s court.

But we should also consider what is perhaps a scarier hypothesis: What if Barr actually believes it all? That is, what if he has sufficiently become a creature of the factual ecosystem of Trump’s support that he truly believes that the real problem here was not a president who accepted (noncriminally, of course) assistance from a hostile foreign power during his campaign, lied serially about it, and tried repeatedly to frustrate investigation of his conduct? What if Barr actually believes that closing a criminal case on these matters is the end of the historical conversation, as well as the end of the criminal conversation? What if he is actually untroubled by the substance of what Mueller reported and, like Rudy Giuliani, believes it’s okay for presidential candidates to take “dirt” from foreign governments on their rivals and okay for presidents to call up investigations of those rivals? What if he really believes that the true problem here was the investigators?

In some ways, the only thing scarier than an attorney general who would knowingly and cynically deliver the layers of misinformation Barr has been dishing is one who would do so because he’s all in on a collective delusion.