By unilaterally concluding that Mr. Trump did not obstruct justice, the attorney general has made it imperative that the public see the Mueller report.
But the critical part of the letter is that it now creates a whole new mess. After laying out the scope of the investigation and noting that Mr. Mueller’s report does not offer any legal recommendations, Mr. Barr declares that it therefore “leaves it to the attorney general to decide whether the conduct described in the report constitutes a crime.” He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.
Such a conclusion would be momentous in any event. But to do so within 48 hours of receiving the report (which pointedly did not reach that conclusion) should be deeply concerning to every American.
.. On the facts, Mr. Barr says that the government would need to prove that Mr. Trump acted with “corrupt intent” and there were no such actions. But how would Mr. Barr know? Did he even attempt to interview Mr. Trump about his intentions?
What kind of prosecutor would make a decision about someone’s intent without even trying to talk to him? Particularly in light of Mr. Mueller’s pointed statement that his report does not “exonerate” Mr. Trump. Mr. Mueller didn’t have to say anything like that. He did so for a reason. And that reason may well be that there is troubling evidence in the substantial record that he compiled.
.. Furthermore, we do not know why Mr. Mueller did not try to force an interview with the president.
The opening lines of the obstruction section of Mr. Barr’s letter are even more concerning. It says that the special counsel investigated “a number of actions by the president — most of which have been the subject of public reporting.” That suggests that at least some of the foundation for an obstruction of justice charge has not yet been made public. There will be no way to have confidence in such a quick judgment about previously unreported actions without knowing what those actions were.
On the law, Mr. Barr’s letter also obliquely suggests that he consulted with the Office of Legal Counsel, the elite Justice Department office that interprets federal statutes. This raises the serious question of whether Mr. Barr’s decision on Sunday was based on the bizarre legal views that he set out in an unsolicited 19-page memo last year.
That memo made the argument that the obstruction of justice statute does not apply to the president because the text of the statute doesn’t specifically mention the president. Of course, the murder statute doesn’t mention the president either, but no one thinks the president can’t commit murder. Indeed, the Office of Legal Counsel had previously concluded that such an argument to interpret another criminal statute, the bribery law, was wrong.
As such, Mr. Barr’s reference to the office raises the question of whether he tried to enshrine his idiosyncratic view into the law and bar Mr. Trump’s prosecution. His unsolicited memo should be understood for what it is, a badly argued attempt to put presidents above the law. If he used that legal fiction to let President Trump off the hook, Congress would have to begin an impeachment investigation to vindicate the rule of law.
Sometimes momentous government action leaves everyone uncertain about the next move. This is not one of those times. Congress now has a clear path of action. It must first demand the release of the Mueller report, so that Americans can see the evidence for themselves. Then, it must call Mr. Barr and Mr. Mueller to testify. Mr. Barr in particular must explain his rationale for reaching the obstruction judgment he made.
No one wants a president to be guilty of obstruction of justice. The only thing worse than that is a guilty president who goes without punishment. The Barr letter raises the specter that we are living in such times.
Why Mueller’s final move could be a grand conspiracy case
In 1988, senior members of Reagan’s administration, including Lt. Col. Oliver North, were charged with conspiracy to defraud the United States over their alleged roles in illegally selling arms to Iran and passing the proceeds to rebels in Nicaragua.
The affair was investigated by Congress and independent counsel Lawrence Walsh. By the time it was over, 14 people were criminally charged and 11 were convicted — although all 11 either had their convictions overturned or received pardons from Reagan’s successor, George H. W. Bush.
Walsh later complained bitterly that the Reagan and Bush administrations stymied his investigation, including through those pardons, which were pushed hard by Bush’s then-attorney general, William Barr. Barr later recalled: “I favored the broadest pardon authority.” Perhaps not coincidentally, Barr has now been called back to the DOJ by Trump to oversee the final stages of the Mueller investigation.
.. Renato Mariotti, a former prosecutor and close Mueller-watcher, argues that the special prosecutor is unlikely to roll out a grand conspiracy — for the simple reason that it would be extremely difficult to prove beyond a reasonable doubt.
After all, even behavior that appears to be a clumsy attempt at coordination might fall short of serving as evidence of conspiracy: Recall when Trump famously asked Russia to hack Hillary’s emails in the middle of the campaign.By making that call during a press conference, Trump actually made it harder to prove in court that he was somehow intentionally conspiring with Russians in the hacking of her computer, which took place later that same day.“I think most prosecutors would be reluctant to charge that, because he could say it was said in jest,” said McQuade.
Will We Ever See Mueller’s Report on Trump? Maybe.
The swirl of speculation surrounding the Russia investigation often assumes that the special counsel, Robert S. Mueller III, will release a report of his findings that will serve as the definitive explanation of how Russia interfered in the 2016 election and whether President Trump or his associates coordinated with Moscow.
But there is no such guarantee. The law does not require the Justice Department to release a report, and Mr. Mueller has been silent on the issue. Mr. Trump’s nominee for attorney general, William P. Barr, said at his confirmation hearing on Tuesday that he wanted to release as much of what Mr. Mueller found as possible. But he said he needed to learn more about the report and the regulations that govern his releasing information from it before deciding what to do about disclosing the findings.
That answer did not satisfy leading Senate Democrats, who said on Wednesday that they would oppose Mr. Barr’s nomination unless he agreed to release the entire report Mr. Mueller produces, except for redactions of sensitive national security information.
.. Nearly a half-century ago, the special counsel investigating President Richard M. Nixon over the Watergate scandal, Leon Jaworski, had a grand jury send to Congress a terse report containing spare factual statements with citations of evidence and no legal analysis. This report, known as the “Road Map,” was kept secret until last year.
But Mr. Mueller is working under a different set of rules than any of those investigators.
.. The officials who wrote the regulations sought to prevent the sort of “extravagant” steps Mr. Starr had taken in writing his report, according to Neal Katyal, a former Justice Department official who drafted the rules.
.. The regulation instructs Mr. Mueller to give the attorney general “a confidential report” when he has finished his investigation explaining his decisions about whom to prosecute and whom not to charge. The attorney general, in turn, must send a report to Congress explaining why the work has concluded. The attorney general is also free to decide that issuing that report would be in the public interest, as long as it is released lawfully.
.. The Justice Department’s explanation of the special counsel regulations, filed in the Federal Register in 1999, criticized the old independent counsel law’s system where prosecutors filed reports directly to Congress that typically were made public, as in the Starr investigation.
Instead, officials called for special counsels to write confidential summaries to the attorney general about their charging decisions and for the attorney general’s report to Congress to be a “brief notification” that the investigation was closed and why.
.. While Mr. Barr repeatedly emphasized that he wants to make public as much information as he can about the special counsel investigation, he stopped short of making commitments — emphasizing that certain rules might hamstring him and that he had not yet been briefed on Mr. Mueller’s investigation. He also said he wanted to speak to Mr. Mueller and Rod J. Rosenstein, the deputy attorney general who appointed the special counsel, to see what they were already thinking.
“I don’t know what, at the end of the day, what will be releasable,” he said at his confirmation hearing. “I don’t know what Bob Mueller is writing.”
Mr. Barr left open possibilities including drafting his own summary of the findings, should he be confirmed as attorney general, as expected.
.. “There are different reports at work here,” Mr. Barr said. “Under the current regulations, the special counsel report is confidential, and the report that goes public would be a report by the attorney general.”
.. That answer failed to placate Democrats and left confusion about his ultimate intentions. On Wednesday, one of the witnesses at his hearing, Neil Kinkopf, a Georgia State University law professor and former Justice Department official in the Obama and Clinton administrations, flagged the ambiguity with concern, saying Mr. Barr seemed to be interpreting the regulation to mean that the attorney general should release his own report, not turn over Mr. Mueller’s... Mr. Barr also noted that the Justice Department typically keeps confidential so-called declination memos where prosecutors explain what they uncovered about anyone they decide not to prosecute.On Wednesday, Mr. Kinkopf noted that the Justice Department had taken the position that sitting presidents could not be indicted while in office. If Mr. Barr strictly enforces the view that department policy forbids putting out negative information about people whom prosecutors declined to charge, he said, that would prevent Justice Department officials from releasing information about Mr. Trump’s actions.
.. Mr. Katyal said there was one way around that. The special counsel regulation requires Mr. Barr to tell Congress about any instance in which he overruled a step Mr. Mueller proposed, so if Mr. Mueller were to suggest indicting Mr. Trump, the attorney general report would have to discuss that.
How else can we find out what Mueller learned?
- For one thing, information could leak to the news media. If any Mueller report is leaked, that would most likely cause a firestorm, especially if it contained unredacted classified information and evidence subject to grand-jury secrecy rules.
- .. The House Judiciary Committee, now controlled by Democrats, could also seek to subpoena the report. If Mr. Trump asserts executive privilege to avoid turning it over, the House could ask a judge to order it handed over.
- House Democrats could similarly seek to subpoena Mr. Mueller to testify about his findings. Mr. Trump could also seek to gag Mr. Mueller by invoking executive privilege, although it is not clear that he would succeed.
..vThe president’s personal lawyer Rudolph W. Giuliani has suggestedthat in addition to potentially invoking executive privilege, the White House may seek to edit a report that will go to Congress “so we can correct it if they’re wrong.”
Mr. Barr said on Tuesday that he would not allow such a move: “That will not happen.”
Why would William Barr take this job? The answer should alarm Trump.
It was William P. Barr’s confirmation hearing. But it was Robert S. Mueller III’s affirmation hearing.
President Trump had nominated Barr to be his new attorney general to shield him from Mueller’s hoax of a rigged witch hunt. But Barr spent much of his seven-hour confirmation hearing before the Senate Judiciary Committee on Tuesday lavishing praise on his future boss’s tormentor. And Republicans, for the most part, didn’t defend Trump — and occasionally joined in the Mueller veneration.
None of this guarantees that Mueller will be able to complete his work unhindered, or that Americans will ever know what work he did. Ominously, Barr, while promising “as much transparency as I can consistent with the law,” suggested he might try to bury the special counsel’s report by treating it as confidential and releasing only “certain information” himself.
.. Still, Mueller’s de facto affirmation hearing should be of concern to Trump as the president tries to discredit whatever the special prosecutor comes up with in the coming weeks or months. Just about everybody but Trump regards Mueller as an upstanding man doing honest work. Even Trump’s potential new attorney general.
Barr described declining an earlier request to join Trump’s legal defense team, saying, “I didn’t want to stick my head into that meat grinder.” He recalled telling Trump at the time that “Bob is a straight shooter and should be dealt with as such.”
Regarding his “good friend” of three decades, Barr vowed unequivocally: “On my watch, Bob will be allowed to finish his work.” If ordered to fire Mueller without cause, he said, “I would not carry out that instruction.”
.. And what if Trump’s lawyers attempt to edit the Mueller report, as has been threatened? “That will not happen.” Barr warned that the president’s interference in cases involving himself and his associates could be unconstitutional or criminal. He even qualified his earlier memo criticizing parts of the Mueller investigation, saying, “I had no facts.”
Barr’s appearance seemed to have a calming effect on the panel so recently shredded by the Brett M. Kavanaugh Supreme Court confirmation. It was as though the appearance of the 68-year-old Barr, confirmed by the same committee 27 years ago to serve the same role in President George H.W. Bush’s administration, had transported the lawmakers to a kinder, gentler time. Instead of trading barbs, Democrats and Republicans took turns talking about the nominee’s grandson. (The 8-year-old’s “Dear Grandpa” note to the nominee mid-hearing was a hit.)
Maybe the bombshell reports over the weekend about Trump’s Russia ties had cowed the Republicans. Whatever the cause, they were disinclined to defend Trump. Sen. Charles E. Grassley (R-Iowa) joined Democrats in pushing Barr for an expansive release of the Mueller report, saying, “The taxpayers ought to know what their money was spent for.”
And the chairman, Sen. Lindsey O. Graham (R-S.C.), usually a Trump loyalist, seemed to be trolling the president.
“Do you believe Mr. Mueller would be involved in a witch hunt against anybody?” Graham asked, invoking the president’s favorite phrase.
“I don’t believe Mr. Mueller would be involved in a witch hunt,” the nominee replied.
.. Asked whether then-Attorney General Jeff Sessions was right to recuse himself from the Russia investigation — a source of Trump’s fury — Barr replied: “I think he probably did the right thing recusing himself.”
“I agree,” Graham added, before poking fun at Trump’s lack of intellectual curiosity. “President Trump is a one-pager kind of guy,” he said.
“I suspect he is,” Barr concurred.
There was laughter in the hearing room at Trump’s expense.
Trump, no doubt encouraged by Barr’s earlier Mueller memo, hopes to be protected by his new attorney general. And it is possible Barr wasn’t being honest in his professed respect for Mueller and for transparency.
.. But why would Barr come out of retirement, instead of spending “cherished time” with grandchildren, to take a job he already had — only to become a villain for covering up Mueller’s findings?
“You seem like a rational person,” Sen. Richard J. Durbin (D-Ill.) told Barr. “Why do you want this job?”
Indeed, he’s joining a president famous for chewing up once-respected figures and sending them packing in disgrace and humiliation. Trump reportedly referred to Sessions as “Mr. Magoo” and “mentally retarded” and demeaned him publicly.
Barr’s answer to Durbin should have sent chills down the presidential spine as he munched on leftover Big Macs at the White House.
The rule of law, Barr said, “is the heartbeat of this country,” and he vowed to “protect the independence and the reputation of the department.” Trump’s treatment of subordinates “might give me pause if I was 45 or 50 years old, but it doesn’t give me pause right now,” Barr continued. He added, “I will not be bullied into doing anything I think is wrong.”
Barr spent decades building his reputation. Why would he throw it away now by becoming the guy who buried the Mueller report?