Mueller Objected to Barr’s Description of Russia Investigation’s Findings on Trump

Robert S. Mueller III, the special counsel, wrote a letter in late March to Attorney General William P. Barr objecting to his early description of the Russia investigation’s conclusions that appeared to clear President Trump on possible obstruction of justice, according to the Justice Department and three people with direct knowledge of the communication between the two men.

The letter adds to the growing evidence of a rift between them and is another sign of the anger among the special counsel’s investigatorsabout Mr. Barr’s characterization of their findings, which allowed Mr. Trump to wrongly claim he had been vindicated.

It was unclear what specific objections Mr. Mueller raised in his letter, though a Justice Department spokeswoman said on Tuesday evening that he “expressed a frustration over the lack of context” in Mr. Barr’s presentation of his findings on obstruction of justice. Mr. Barr defended his descriptions of the investigation’s conclusions in conversations with Mr. Mueller over the days after he sent the letter, according to two people with knowledge of their discussions.

Mr. Barr, who was scheduled to testify on Wednesday before the Senate Judiciary Committee about the investigation, has said publicly that he disagrees with some of the legal reasoning in the Mueller report. Senior Democratic lawmakers have invited Mr. Mueller to testify in the coming weeks but have been unable to secure a date for his testimony.

A central issue in the simmering dispute is how the public’s understanding of the Mueller report has been shaped since the special counsel ended his investigation and delivered his 448-page report on March 22 to the attorney general, his boss and longtime friend. The four-page letter that Mr. Barr sent to Congress two days later gave little detail about the special counsel’s findings and created the impression that Mr. Mueller’s team found no wrongdoing, allowing Mr. Trump to declare he had been exonerated.

But when Mr. Mueller’s report was released on April 18, it painted a far more damning picture of the president and showed that Mr. Mueller believed that significant evidence existed that Mr. Trump obstructed justice.

“The special counsel emphasized that nothing in the attorney general’s March 24 letter was inaccurate or misleading,” a Justice Department spokeswoman, Kerri Kupec, said in response to a request for comment made on Tuesday afternoon. A spokesman for the special counsel’s office declined to comment.

Over the past month, other signs of friction between the attorney general and the special counsel have emerged over issues like legal theories about constitutional protections afforded to presidents to do their job and how Mr. Mueller’s team conducted the investigation.

In congressional testimony in April before the report was released, Mr. Barr demurred when asked whether he believed that the investigation was a “witch hunt” — Mr. Trump’s preferred term. It “depends on where you’re sitting,” Mr. Barr replied.

“If you are somebody who’s being falsely accused of something, you would tend to view the investigation as a witch hunt,” he said, an apparent reference to the president.

Mr. Barr’s testimony stood in contrast to comments he made during his confirmation hearing in January. “I don’t believe Mr. Mueller would be involved in a witch hunt,” he said then.

A rift between the men appeared to develop in the intervening months as the special counsel wrapped up his inquiry.

The Justice Department received Mr. Mueller’s letter four days after Mr. Barr sent his conclusions to Congress. In response, the attorney general and the special counsel spoke on the phone, and Mr. Mueller laid out his concerns about the initial descriptions of the report.

At the time, the Justice Department had begun redacting the report and Mr. Mueller raised the question about whether more of it could be released.

“The attorney general ultimately determined that it would not be productive to release the report in piecemeal fashion,” Ms. Kupec said. “The attorney general and the special counsel agreed to get the full report out with necessary redactions as expeditiously as possible.”

But Mr. Mueller did lay out evidence against the president. After explaining that he had declined to make a prosecutorial judgment, citing as a factor a Justice Department view that sitting presidents cannot be indicted, the special counsel detailed more than a dozen attempts by the president to impede the inquiry. He also left open the door for charges after Mr. Trump leaves office.

“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,” Mr. Mueller and his investigators wrote. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”

Mr. Mueller’s report, the attorney general and the other senior law enforcement officials believed, read like it had been written for consumption by Congress and the public, not like a confidential report to Mr. Barr, as required under the regulations governing the special counsel.

Some of the special counsel’s investigators have told associates that they were angry about Mr. Barr’s initial characterization of their findings, government officials and others have said, and that their conclusions were more troubling for Mr. Trump than Mr. Barr indicated in his four-page letter. That proved to be the case.

In one instance, Mr. Barr took Mr. Mueller’s words out of context to suggest that the president had no motive to obstruct justice. In another instance, he plucked a fragment from a sentence in the Mueller report that made a conclusion seem less damaging for Mr. Trump.

Investigators wrote, “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’s letter quoted only the passage that the investigation had found no conspiracy or coordination.

It is not clear whether members of Mr. Mueller’s team were angered by these points in particular, or whether Mr. Mueller’s letter cited them.

Despite the disagreement about the report, members of Mr. Mueller’s team worked alongside senior Justice Department officials to redact sensitive information from the report before it was released.

Hours before the public release of the Mueller report, Mr. Barr said during a news conference that he had “disagreed with some of the special counsel’s legal theories” about what constitutes presidential obstruction of justice. He also said repeatedly that the special counsel had found “no collusion” between the Russian government and the Trump campaign. Mr. Trump often uses the term, but Mr. Mueller’s investigators pointed out it had no legal standard and left it out of their judgments.

Instead, investigators wrote that they had not found evidence to prove a criminal conspiracy between the Trump campaign and Russians.

Mr. Barr also said during the news conference that some of Mr. Trump’s efforts to thwart the investigation needed to be put in “context.”

“There is substantial evidence to show 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,” he said.

Attorney general may withdraw from Mueller report hearing over terms of his testimony, House Democrats say

Democrats and the Justice Department are in a standoff over the terms of Attorney General William P. Barr’s planned testimony before the House Judiciary Committee this week, raising the prospect that the hearing might not go forward at all.

A senior Democratic committee aide said Sunday that Barr risks being subpoenaed if he refuses to testify over his objections to the lawmakers’ desired format for the hearing.

Barr is expected to appear before the Senate and House Judiciary committees Wednesday and Thursday, respectively, to address questions about special counsel Robert S. Mueller III’s report on Russian interference in the 2016 election. But according to senior aides for the panel’s chairman, Rep. Jerrold Nadler (D-N.Y.), Justice Department officials have objected to Democrats’ plans to permit extended questioning, including by the committee’s lawyers, and threatened that Barr may withdraw.

“The attorney general agreed to appear before Congress,” Justice Department spokeswoman Kerri Kupec said in a statement. “Therefore, members of Congress should be the ones doing the questioning. He remains happy to engage with Members on their questions regarding the Mueller report.”

.. Democrats maintain that statements and letters Barr issued before releasing Mueller’s redacted report have helped Trump make a case to the public that the special counsel investigation exonerated him, despite what they believe to be a wealth of incriminating evidence detailed throughout the 448-page document. A televised hearing is seen among lawmakers as their opportunity to hold Barr to account and make their case to the American people.

Daniel Schwarz, a spokesman for Nadler, said Sunday, “It would be a shame if Barr refused to show up for the hearing, but it is important that there be a chance to ask follow-up questions as has been done in the past, and members should not be prohibited from asking about redacted sections of the Mueller report, which means we would need to go into executive session in order for Barr to be able to answer in a secure setting.”

.. Democratic members think it’s important, given Barr’s past testimony and what they viewed as his attempt to shape the narrative on Mueller’s report, that he be subjected to extended questioning, including by committee lawyers, said one congressional aide familiar with the matter, who spoke on the condition of anonymity because of the sensitivity surrounding Mueller’s report. Ordinarily, each member gets five minutes for questioning.

Democratic lawmakers “have seen administration witnesses filibuster for 4½ minutes, then say something nonresponsive in the last half-minute,” the aide said. “The Democratic members have been nearly unanimous in their opinion that circumstances warrant extended questioning, including by counsel.”

Democrats also want to reserve the right to vote to have Barr participate in a closed-door session following his public hearing to address questions about the information that remains shrouded by redactions in Mueller’s report, aides said.

But according to Nadler aides, Barr’s team objected to that proposal as well and said such a demand would prevent Barr from delivering his testimony as anticipated.

A Justice Department official came back to the committee Democrats on Friday “very worked up about” Nadler’s plan, and said that if the Democrats insisted on following their plan, Barr “might not come,” the aide said.

“The chutzpah of telling us how the hearing is going to be structured and then threatening to walk goes directly to our working thesis that [Barr] is interested in carrying water for the president but not interested in providing answers to the public,” the aide said.

The committee staff have researched other instances in which committee lawyers have questioned Cabinet officials during open congressional hearings, the aide said. The last time was during the 1980s, when President Ronald Reagan’s attorney general, Edwin Meese, gave testimony during the Iran-contra hearings, the aide said.

“The attorney general can choose to come in voluntarily under the chairman’s framework or risk being subpoenaed at a later date,” the senior aide said.

Barr and Democrats have long been at odds over the Mueller report and how the attorney general has handled its rollout. Many Democrats say Barr misrepresented Mueller’s findings in his public statements before the report’s release, and the party as a whole is frustrated that Barr has not taken further steps to ensure that all members of Congress are able to view the information that was redacted.

Barr’s most recent offer was that a select group of lawmakers, including several committee chairs, be allowed to view the redacted information, except for passages that cite grand jury testimony. Democrats have rejected that offer, arguing that more members and staffers should be privy to the redactions, and that Barr should assist lawmakers in seeking a court order to release the grand jury testimony to them.

A spokesperson for committee Republicans said Barr “wasn’t asked to testify before the committee — he offered.” The attorney general provided the Mueller report voluntarily and invited Democratic leaders to view a less-redacted version of the report in person, said the spokesperson, who like others spoke on the condition of anonymity to discuss sensitive information.

“Yet the only thing, apparently, that will satisfy Democrats, who refuse to read the less-redacted report, is to have staff pinch-hit when a Cabinet-level official appears before us,” the spokesperson said. “What actual precedent is there for our committee making such demands of a sitting attorney general as part of our oversight duties? The attorney general isn’t a fact witness, and this committee’s investigations — as Democrat leadership reminds us daily — don’t constitute impeachment, so Democrats have yet to prove their demands are anything but abusive and illogical in light of the transparency and good faith the attorney general has shown our committee.”

Bill Barr on War Powers: Insights From his 2001 Oral History Interview

In the spring of 2001, Bill Barr, the former attorney general under George H.W. Bush who has now been tapped to resume that role under Donald Trump, sat for an oral history interview sponsored by the University of Virginia’s Miller Center. The transcript is fascinating reading on many issues, such as Barr’s explanation of his reluctant support for now-Justice Sonia Sotomayor for her original district court appointment, his argument for “massive retaliation against Libyan military intelligence targets” after the bombing of Pan Am Flight 103 was attributed to the Libyans and his belief that the “issue of the role of the Department of Justice versus the national security apparatus in terrorist situations … hasn’t been thought through.” But here I’d like to focus on his account of the clash between Congress and the president over war powers.

Barr’s narrative picks up at the time when President H.W. Bush already had deployed half a million troops to Saudi Arabia (Operation Desert Shield), but prior to the invasion to evict Iraq from occupied Kuwait (Operation Desert Storm). Barr had been head of the Office of Legal Counsel previously, and now was the deputy attorney general. With Attorney General Dick Thornburgh unavailable at a particular moment in time and given Barr’s extensive experience with national security legal issues, Barr explained, he naturally became a key participant in discussions regarding whether the president should seek from Congress a formal authorization (or at least some form of endorsement) to use force against Iraq:

We knew the issue would eventually come, and the president would need some advice on the parameters of his power. First, I believed that the president did not require any authorization from Congress, and I believed that the president had constitutional authority to launch an attack against the Iraqis. …  He didn’t put 500,000 troops over there for them to sit there, and there was no doubt in my mind that he was going to go on the offensive unless the Iraqis withdrew unilaterally. So I figured at some point I’d be asked my opinion on this. Then, before I knew it, I got this call that there was going to be a meeting over in the Cabinet Room to discuss the legal issues surrounding the operations in the Gulf.

…[W]hen I was leaving my office, Senator [William S.] Cohen was on the floor, a Republican purportedly, giving this speech saying that if any lawyer ever advised the president that he had the authority—because this was really being debated at the time, and there were op-ed pieces and so forth—if any lawyer told the president that he had authority to unilaterally attack the Iraqis, then that lawyer would be impeached. I was putting on my jacket listening to this going over to the meeting.

…The president said, Bill … I’ve been reading these articles. This op-ed piece the other day said I don’t have the authority to launch an attack on the Iraqis. What’s your view, what’s the Justice Department’s view on whether I have the authority? …

I said, Mr. President, there’s no doubt that you have the authority to launch an attack. I explained why I thought he did under the Constitution as commander-in-chief, and I gave him some different theories.

At this point in the narrative, things are relatively simple. Barr had made clear his view that the president’s inherent authority under Article II included the authority to initiate a large-scale, combined-arms operation involving massive ground forces, without need of congressional authorization in the form of an authorization for the use of military force or otherwise. But he also went on to express a back-up theory—one that he labeled a “bootstrap argument”—in the event that this first theory did not persuade. Here is Barr’s account of the bootstrap argument for presidential war powers:

…I gave him a secondary theory—which I was sort of proud of at the time, it was a bootstrap argument. I said, Now another reason here, Mr. President, is—even for the critics who would say that that wasn’t true—there’s no doubt that you have the authority to put 500,000 troops in the field. Congress authorized—through the approval of the U.N. whatever they are, resolutions, and through their authorization and all that stuff, Congress has definitely approved you putting 500,000 troops over there face-to-face with the Iraqi Army.

We have intelligence that they have weapons of mass destruction—chemical weapons, biological weapons—and your job as commander-in-chief is to make sure those troops are not preemptively attacked. If you feel as commander-in-chief that in order to protect your army in the field you have to launch first, you absolutely can do that. Which I thought was an ingenious argument, [redacted].

Let’s unpack that a bit. The argument proceeds in two steps. First, does the president have authority to deploy armed forces in non-combat capacities? Barr argued that Bush certainly had authority to go that far, and Barr reinforced that conclusion as to this particular instance by pointing out that there was little doubt Congress approved Operation Desert Shield. But this left open the question of whether it somehow followed that Bush also could order that deployed force, without congressional authorization, to initiate hostilities with Iraq. That brings us to the secondstep: By citing the risk that forces deployed in Saudi Arabia might be attacked preemptively by Iraq (by chemical or biological weapons no less), Barr concluded that Bush had available the option of initiating hostilities in the form of anticipatory or preemptive self-defense. Thus the bootstrap metaphor: The authority to attack the Iraqi military could be derived from the need to preemptively defend the deployed forces.

Notably, Barr paused at this point in his advice to the president in order to encourage him to obtain congressional support if possible, recognizing that this would put the president in the strongest position possible. But he also recognized that congressional debate on this subject would introduce the shadow of Justice Robert Jackson’s “tripartite framework” from Youngstown (Steel Seizure):

I said, However, Mr. President, even though you have the power to do this unilaterally, without any consultation with Congress or what have you, you certainly would be in a better position, the strongest possible position, if Congress did pass a resolution. It would not be the law. It wouldn’t be a statute authorizing you to do it, but a resolution supporting what you did.

The reason I say that is because on the Hill at that point they were actually talking about passing a resolution that said the opposite, that he could not use force unless he got their approval. There were some in the administration who were saying, Just let them do it, screw them, ignore them, and let them pass whatever they want.

I said, I think it’s better to get up there and engage, to get up there and see if we can head off that kind of resolution and, in fact, get a resolution in support of it.

President Bush, wisely, anticipated the potential Youngstown problem that might follow:

He said, Well, suppose they pass a resolution saying I cannot do it. What impact does that have?

Barr’s response was nuanced: “I said, It’s irrelevant. It’s not a statute. It’s just an expression of opinion. They can’t change the Constitution by expressing their opinion on the matter. I would say you could still do it.…”

This gets to a very important question, one that senators should explore during the confirmation hearings: Does Barr believe not only that the president has inherent authority to initiate large-scale hostilities (whether directly as in his primary argument above, or via a boostrapped-defense claim as in his fall-back argument), but also that the president can do so even when Congress purports to direct otherwise?

Critically, the answer Barr gave to Bush does not compel the conclusion that Barr believes the commander-in-chief can override a statute. He was careful to frame his answer to President Bush in terms of a hypothetical in which Congress is considering a mere concurrent resolution (that is, something passed by both houses but not presented to the president for signature and not of statutory nature). Barr seems to have been saying that a negative concurring resolution can indeed be overridden—that is, that the president in that type of lowest-ebb scenario would yet prevail on the war powers question. But it does not follow that Barr would take the same view if the congressional opposition took the form of an actual statute (including a proper joint resolution), particularly one leveraging the spending power. Indeed, it is quite possible Barr (like John Yoo) would accept the power of Congress to constrain the commander-in-chief at least via the spending power, so long as the congressional action managed to rise to the statutory level.

In the end, of course, these questions were moot as to what became Operation Desert Storm:

And [Dick] Cheney said, You’re giving him political advice, not legal advice. I said, No, I’m giving him both political and legal advice. They’re really sort of together when you get to this level. Then there was a debate as to whether he should get up on the Hill and push. I was saying he should, and Boyden Gray was saying he should. There were others who were opposed. Eventually he made the decision after that meeting that he would. The White House went full-bore on that vote and got the vote turned around, and then ultimately won the vote. That was an interesting experience. I enjoyed that.

I’ll close by noting what should be obvious from those who have followed these arguments over the past decade. The most common war powers dispute in recent years has been not the question of unilateral authority to engage in large-scale ground operations, but rather unilateral authority to engage in airstrike-focused operations that rely on allies for the ground component—giving rise to the notion, embodied by Obama’s 2011 Libya campaign, that the “war powers” debate is not actually even implicated in the first place in such cases. I think it’s safe to assume that Bill Barr would accept that reading of the president’s authority as well.