There is only one rational explanation for this performance. Mueller wants Congress and the public to presume that if it were not for the OLC guidance, it is very likely that he would have charged the president with obstruction — maybe not an absolute certainty, but nearly so.
And then, just in case we were too dense to understand the nods and winks, Mueller took pains to emphasize that, in our constitutional system, it is up to Congress, not federal prosecutors, to address alleged misconduct by a sitting president.
Simple as 1 + 1 + 1 = 3. Likely felony obstruction, plus inability of prosecutors to indict, plus duty of Congress to deal with presidential criminality, equals: Impeachment is the only remedy, unless congressional Democrats are saying that Donald Trump is above the law. (Good luck, Speaker Pelosi, trying to pipe down your AOC wing, to say nothing of the 2020 primary contestants, after that one.)
This should not be a surprise. We have been saying since shortly after Mueller was appointed that his investigation was not a collusion probe but an obstruction probe, and that this necessarily made it an impeachment probe.
Competing Views of Obstruction
As noted above, the apparent contradiction between Mueller and Barr is clarified by the timeline.
To grasp this, you must first understand that Mueller and his staff are completely result-oriented. If you’ve decided to act as counsel to a congressional impeachment inquiry rather than as a federal prosecutor, the objective is to get your evidence in front of Congress, with the patina of felony obstruction.
In the Nixon and Clinton situations, the rationale for impeachment was obstruction of justice. Significantly, the issue in impeachment cases is abuse of power, not courtroom guilt. Consequently, unlike a prosecutor, a counsel to a congressional impeachment committee does not need evidence strong enough to support a criminal indictment; just something reasonably close to that, enough to enable a president’s congressional opposition to find unfitness for high office.
Once you understand that, it is easy to see what happened here.
Mueller’s staff, chockablock with progressive activists, has conceptions of executive power and obstruction that are saliently different from Barr’s (and from those of conservative legal analysts who subscribe to Justice Scalia’s views on unitary executive power).
He is serving a vision of America that no longer exists.
Robert S. Mueller III has spoken, but he had very little to say. As he said at a brief news conference on Wednesday morning, he will not go beyond what his report said. He will not criticize Attorney General Bill Barr, even though he wrote a letter to Mr. Barr in late March complaining that the attorney general’s summary of the Mueller report did not capture its “context, nature, and substance.”
And while he didn’t completely close the door on appearing before Congress, Mr. Mueller made it clear that it wouldn’t exactly be must-see TV, so what would be the point.
What we saw on display in Mr. Mueller’s nine-minute statement was his often discussed sense of rectitude and propriety. These are admirable attributes, normally. But we might well wonder whether those attributes are what is needed in the age of Donald Trump, or whether the preservation of our democratic institutions demands more.
Born in Manhattan to a former Navy officer and the granddaughter of a railroad executive, Mr. Mueller was the product of an era and a social class to whom the kind of flesh-ripping partisanship we have today was absolutely anathema.
He grew up mostly in Princeton, N.J. At a private school he attended in New Hampshire, a lacrosse (yes, lacrosse) teammate was John Kerry. It’s worth mentioning Mr. Kerry, because he was the same sort: well-born and imbued with the identical sense of class duty. Mr. Kerry, as is well known, enlisted in the Navy even before he graduated from Yale in 1966, and insisted he be sent to Vietnam.
Mr. Mueller graduated from Princeton that same year and soon enlisted in the Marines. Like Mr. Kerry, he saw combat in Vietnam. He won a Bronze Star and a Purple Heart. “One of the reasons I went into the Marine Corps was because we lost a very good friend, a Marine in Vietnam, who was a year ahead of me at Princeton,” he said in a 2016 interview. “There were a number of us who felt we should follow his example and at least go into the service. And it flows from there.”
Mr. Kerry is a Democrat, and Mr. Mueller a Republican. But in their social stratum, while Republicans surely outnumbered Democrats, it didn’t matter all that much. You could, in those days, be in either party and still have the same sense of duty and even, unimaginable as it seems today, believe many of the same things. Thus Mr. Mueller could be comfortable spending much of his career in the Department of Justice in one form or another, being named to posts by Democrats and Republicans alike.
And that is the Robert Mueller who did not want to be seen as being part of anything too “political.” As a creature of his generation, his class, the Marines and the Justice Department, being political surely goes against every instinct he has.
But there is another ideal that men like Mr. Mueller and Mr. Kerry were raised to uphold: the willingness to stand up to the dark impulses of the moment. There is a story, first reported by Jane Mayer in The New Yorker, that illustrates the mind-set perfectly. Shortly after the Sept. 11 attacks, in the face of all the hysteria, precious few lawyers were willing to defend suspected terrorists. At a Washington dinner party, guests began to turn on Tom Wilner, a corporate lawyer who was at the time defending a Guantánamo detainee.
(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.
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 Justice Department is admitting that Robert Mueller is frustrated with William Barr. Cenk Uygur, Ramesh Srinivasan, and Brooke Thomas, hosts of The Young Turks, break it down. MORE TYT: https://go.tyt.com/7ks
“A Justice Department spokeswoman said Tuesday that special counsel Robert Mueller expressed “frustration” to Attorney General William Barr in late March over the lack of context in the attorney general’s four-page memo describing his investigation’s findings. Mueller “expressed frustration over the lack of context and the resulting media coverage” of his obstruction inquiry in a phone call following the release of Barr’s four-page letter, Justice Department spokeswoman Kerri Kupec said in a statement to The Hill. Kupec said Barr called Mueller after receiving a letter in which, according to The Washington Post, the special counsel wrote that Barr’s March 24 memo did not “capture the context, nature, and substance” of his findings.”
Attorney General William P. Barr pulled out of a Thursday hearing of the House Judiciary Committee, and he has left House lawmakers who are investigating the president fuming and calculating.
In the letter, the special counsel took Mr. Barr to task for the way that the attorney general had initially summarized his findings, leaving “public confusion about critical aspects of the results of our investigation.” That appeared to undercut Mr. Barr’s claims at a House hearing on April 9 that he was not aware of any such discontent.
“What is deadly serious about it is the attorney general of the United States of America was not telling the truth to the Congress of the United States,” Ms. Pelosi told reporters. “That’s a crime.”
The Justice Department and Republicans on Capitol Hill fired back; Kerri Kupec, a department spokeswoman, called Ms. Pelosi’s comments a “baseless attack” that was “reckless, irresponsible and false.”
Mr. Barr had offered his own defense on Wednesday, telling senators that his comments about not knowing the feelings of the special counsel’s office referred to the investigators — not Mr. Mueller himself.
The calls for Mr. Barr to be held in contempt of Congress stem not from Mr. Mueller’s letter or his refusal to appear in front of the committee on Thursday. Instead, they follow the Justice Department’s decision not to honor the House Judiciary Committee’s subpoena for Mr. Mueller’s report without redactions and all the evidence his investigators collected.
Democrats are not alone in their unhappiness over how the nearly two-year special counsel investigation is coming to a close.
In a letter to Mr. Barr that was dated April 19 but released on Thursday, a top White House lawyer, Emmet T. Flood, complained that the special counsel had violated the regulations governing his appointment by failing to reach a prosecutorial decision on obstruction of justice. Mr. Flood described Mr. Mueller’s findings as a 182-page discussion of evidence that were “part ‘truth commission’ report and part law school exam paper.”
Echoing Mr. Trump’s complaints about the “deep state,” though couching them in legalese, Mr. Flood accused unnamed officials of “a campaign of illegal leaks” to damage the president. He said James B. Comey, the former F.B.I. director, who was not named in the letter, had talked to reporters about his encounters with Mr. Trump to engineer the appointment of a special counsel.
“That the head of our country’s top law enforcement agency has actually done so to the president of the United States should frighten every friend of individual liberty,” Mr. Flood wrote.
Mr. Flood cautioned the attorney general that despite choosing against exerting executive privilege over material contained in the report, the president maintained the right to conceal raw evidence collected by the special counsel and to block witnesses from appearing before Congress.
Officially, Mr. Barr refused to show for the Judiciary Committee hearing because Democrats had insisted that he sit for questioning from Democratic and Republican staff lawyers. In a statement on Wednesday, Ms. Kupec called Democrats’ demands “unprecedented and unnecessary.” She said Mr. Barr would be happy to testify if Democrats would drop that demand.
Mr. Cohen was not having it. “Chicken Barr should have shown up today and answered questions,” he told reporters. “An attorney general who’s picked for his legal acumen and his abilities would not be fearful of attorneys questioning him for 30 minutes.”
Seeking to dramatize the attorney general’s absence, Democrats set out an empty chair with a name card for Mr. Barr and insisted it was their prerogative to decide how to run their hearings.
“The so-called attorney general is abrasive, evasive and unpersuasive,” said Representative Hakeem Jeffries of New York, the No. 5 House Democrat and a member of the Judiciary Committee. “He is a disgrace to the office that he currently holds.”
Representative Doug Collins of Georgia, the top Republican on the committee, lit into his Democratic colleagues for making “ludicrous” demands and accused Mr. Nadler of manufacturing a conflict instead of trying to get at the truth.
“The reason Bill Barr is not here today is because the Democrats decided they did not want him here today,” Mr. Collins said, his rapid-fire Georgia accent winding up in indignation.
When Republicans tried to prolong the brief session with parliamentary objections, Mr. Nadler gaveled out, cut the microphones and walked out of the hearing room.
.. In his remarks, Mr. Barr said the Justice Department’s primary obligation is to determine whether a crime has been committed, rather than lay out facts without making a determination.