Updated at 7:00 pm ET with comment from the Department of Justice.
WASHINGTON — The release of the Mueller report last week didn’t just give the American public an inside view of the two-year probe into the Trump campaign’s ties to Russia; it exposed a glaring difference of opinion within the Department of Justice.
The special counsel's 400-page report stands in stark contrast to Attorney General William Barr’s summary of it in both his letter to Congress one month ago and his press conference before the report’s release on Thursday. This difference rarely appears more exaggerated than on the subject of obstruction of justice.
In fact, though both Barr and Mueller draw from the same evidence, they appear to have reached entirely different legal conclusions. In his letter, Barr argues that “evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.” But Robert Mueller actually argues the inverse: “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.”
These differences of opinion show up in other stark ways throughout the report, highlighting just how much Barr mischaracterized or omitted Mueller’s key observations.
But, as Democrats debate pursuing impeachment against the president, the basis for Barr’s legal defense of Trump appears surprisingly feeble, former prosecutors and legal analysts told VICE News, at least judging from what he’s said in public so far.
“A lot of lawyers are simply bewildered by the conclusion Barr reached.”
“In my mind, the circumstantial evidence presented by Mueller is overwhelming, and proves beyond a reasonable doubt that the crime was committed,” said Seth Waxman, a former prosecutor based in Washington, D.C. “I think Barr’s conclusion that the evidence fell short can only be understood in the context of his political considerations.”
Neither the White House nor the Department of Justice responded to VICE News’ request for comment.
Both Barr and Mueller begin with the notion that an obstruction of justice crime generally rests on proving three components:
- Obstructive conduct
- A connection between that conduct and some legal proceeding
- Corrupt intent
But Barr prioritizes the last one over the rest.
Having “corrupt intent” here would mean intending to throw Mueller’s investigation off the rails. But to Barr, despite ample evidence to the contrary, Trump intended nothing of the sort.
Barr expanded on this argument briefly during the press conference shortly before the report's release, saying Trump didn’t obstruct justice because it can’t be proved exactly what Trump had in mind when he fired his FBI director, tried to get Mueller removed, threatened former aides not to cooperate with investigators, and encouraged his team to lie.
Instead, Barr said “substantial evidence” suggests Trump had a different motivation entirely: He was mad about being falsely accused.
Barr said Trump was justifiably “frustrated and angered” by an investigation Trump saw as undermining his presidency, and by “relentless speculation” in the press about his possible guilt.
“How does Barr know what Trump’s sincere beliefs are?”
“He sounded like a defense attorney for Trump offering flimsy legal reasoning and weak factual justifications for his client,” said Mimi Rocah, a former prosecutor for the Southern District of New York. “How does Barr know what Trump’s sincere beliefs are?”
That reasoning “would not be accepted by a prosecutor under any other circumstances,” said Harry Sandick, also a former prosecutor with the Southern District.
The fact that Mueller could not prove Trump was involved in a criminal conspiracy with Russia shows the president had a right to be angry about being aggressively investigated, Barr said. It also undermines the idea that Trump had any corrupt intent in obstructing justice.
“Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the president had a corrupt intent to obstruct the investigation,” Barr told reporters Thursday.
Mueller offers a decidedly different reason for not charging Trump: DOJ policy that you can’t indict a sitting president. The Mueller report kicks off the section on obstruction by noting that the team agreed to observe that policy. It also goes on to argue that it wouldn’t be fair to accuse someone of a crime if they don’t have a chance to clear their name through a trial. And then it lays out, in painstaking detail, a damning case against the president.
Barr claimed at his press conference that Mueller himself had insisted “several times” that the policy wasn’t the only thing blocking him from charging Trump — a statement that appears at odds with the contents of the report itself. A senior official at the Department of Justice did not directly address such concerns, and instead referred VICE News to Barr's previous comments about his March 5th meeting with Mueller. The DOJ official also underscored their efforts of transparency, insisting that they weren't required to release the "confidential" report at all.
“The general policy of not being able to indict a sitting president is a DOJ policy, and it obviously was the most important part of Mueller’s thinking,” Neal Katyal, the former U.S. solicitor general who wrote the special counsel regulations, said in an interview with the New Yorker Friday. “It is literally the first thing he says, on page 1 of the report, and it is striking to me that William Barr, who claimed to be summarizing or describing the report, couldn’t even tell us about that."
Barr’s justification for clearing Trump of obstruction appears surprisingly dubious from a man widely regarded as a legal heavyweight.
“A lot of lawyers are simply bewildered by the conclusion Barr reached,” said Carl Tobias, a professor of law at the University of Richmond specializing in the federal court system. “I’m certainly not persuaded by his reasoning.”
In the eyes of the law, having an innocent motive (such as being angry) doesn’t somehow cancel out any improper ones, said Barbara McQuade, Detroit’s former U.S. Attorney. “For example, if a politician takes a bribe to vote a certain way, it is not a defense for him to say he was planning to vote that way anyway.”
Mueller presents plenty of specific examples that support the idea that Trump was deliberately taking steps to stop the investigation, and points directly at evidence that speaks to Trump’s motivations.
“It’s hard to see how Barr could dispute these motives as corrupt intent, but he doesn’t even try.”
The report gathers much of its material from White House Counsel Don McGahn, who defied a request by Trump to have Mueller removed in June 2017, threatening to resign instead. Afterwards, the report says, Trump asked McGahn to fabricate a paper trail denying the episode ever took place. McGahn, again, refused.
Faced with resistance from official channels, the report says Trump then turned to his former campaign manager, Corey Lewandowski, and asked him to get then-Attorney General Jeff Sessions to limit the scope of Mueller’s investigation. At that time, Lewandowski had no official role in the Trump administration, and Sessions had recused himself from the probe, citing his own role on Trump’s campaign.
Mueller points out that Trump’s decision to use an unofficial backchannel to Sessions — Lewandowski — speaks to Trump’s intent, because it provides evidence that he knew this wasn’t just the normal way of doing government business.
“Substantial evidence indicates that the President's effort to have Sessions limit the scope of the Special Counsel's investigation to future election interference was intended to prevent further investigative scrutiny of the President's and his campaign's conduct,” Mueller writes.
Despite Barr’s argument that the evidence of Trump’s corrupt intent is insufficient, the Mueller report lists other possible motivations. Those include concern that the investigation might undermine the legitimacy of his election, and uncertainty about whether certain events — such as when his campaign’s top brass took a meeting with a Russian lawyer — might be seen as criminal activity.
Neither Barr’s letter to Congress nor his press conference offers up any kind of detailed, point-by-point rebuttal.
“It’s hard to see how Barr could dispute these motives as corrupt intent,” said Rocah, “but he doesn’t even try.”
Barr does have a lot more to say about the question of obstruction: In the past, he’s argued that the president can’t obstruct justice while exercising his official powers as head of the executive branch.
Yet he’s sent mixed signals about whether that constitutional argument factored into his thinking.
Shortly after receiving Mueller’s report, Barr told Congress that Trump lacked the intent to obstruct justice, and explicitly said that this judgement was made “without regard to” the constitutional considerations.
Since the release of Mueller’s report, however, Barr has hinted that this argument may be lurking somewhere in his thinking, without raising it explicitly.
At his press conference Thursday, Barr said he “disagreed with some of the special counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law,” though he added that he didn't “rely solely on that in making our decision.”
“I think Barr’s conclusion that the evidence fell short can only be understood in the context of his political considerations.”
Those cryptic comments appeared to refer to the 19-page legal memo Barr sent to the Department of Justice last summer before he became Attorney General.
The document argued that, from the outset, Mueller’s theory of obstruction was “fatally misconceived.” Barr maintained that certain powers Constitutionally granted to a president, like authority over the Justice Department, couldn’t be construed as obstruction of justice — even if the president fires an FBI director in order to halt an investigation of himself.
But if that’s what Barr had in mind, he hasn’t expressly said so since he received Mueller’s final report — which itself contains a lengthy rebuttal of that very idea.
“Our analysis led us to conclude that the obstruction-of-justice statutes can validly prohibit a President's corrupt efforts to use his official powers to curtail, end, or interfere with an investigation,” Mueller writes.
Cover: United States Attorney General William P. Barr testifies before the US Senate Committee on Appropriations Subcommittee on Commerce, Justice, Science, and Related Agencies on Capitol Hill in Washington, DC on April 10, 2019, where he stated that spying occurred during the 2016 presidential campaign of US President Donald J. Trump. Credit: Stefani Reynolds