When Attorney General William Barr sent Congress a four-page letter last month describing his take on the conclusions of Robert Mueller’s special counsel investigation, he quoted several fragments of Mueller’s then-secret report.
But none of the excerpts were in context, raising the question of whether he was portraying their thrust and tone accurately.
Obstruction of justice
Barr: “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.”
Mueller: “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. … 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.”
Barr, in explaining why he was declaring Trump cleared of obstructing justice, turned the special counsel’s meaning on its head: The brief excerpt came from a list of other possible reasons Trump might have had to corruptly impede the investigation and which Barr did not mention.
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.’ ”
Mueller: “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.”
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.
Barr: “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.’ ”
Mueller: “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 Barr omitted, Mueller emphasized that there can be a type of complicit conduct that falls short of how the special counsel defined coordination.
Barr: “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.”
Mueller: “While the [Justice Department’s Office of Legal Counsel] opinion concludes that a sitting president may not be prosecuted, it recognizes that a criminal investigation during the president’s term is permissible. The OLC opinion also recognizes that a president does not have immunity after he leaves office. … Given those considerations … 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, Barr did not explain that Mueller was trying to leave open the possibility that prosecutors in the future, after Trump leaves office, could look at the evidence he gathered and decide then whether to indict Trump. That rationale conflicted with Barr’s move to pronounce Trump cleared now.