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How Bill Barr turned the Mueller report into a legal defense of Trump

In one four-page letter, Barr set a historic new precedent for executive power.

by Greg Walters
Mar 28 2019, 1:21pm

President Trump used to fume that his former attorney general, Jeff Sessions, didn’t protect him from the Russia investigation. It’s unlikely he’ll ever say that about William Barr.

For good reason: Barr earned his spurs in Trumpworld this week by issuing a brief summary of special counsel Robert Mueller’s report that not only clears the president of any crimes of collusion and obstruction of justice but also doubles as a momentous assertion of executive power.

In one four-page letter, Barr set a historic new precedent, one that essentially puts hardball moves like firing the FBI director and dangling pardons before potential witnesses within bounds for the presidency.

But Barr’s judgment call will now face intense scrutiny, especially from Congress, which is clamoring to review Mueller’s evidence for itself and could reach an entirely different verdict on Trump’s behavior.

“Things aren’t over” on the obstruction question, said Mary McCord, a former high-ranking DOJ official who oversaw the Russian 2016 election interference investigation before Mueller’s appointment. “Congress could see it differently, as the prosecutor responsible for bringing articles of impeachment.”

Barr’s big salvo

Barr’s letter can effectively be broken into two parts: the first, very much in line with his promise to reveal Mueller’s “principal conclusions;” the second, a legal argument, not unlike one you’d expect from a defense attorney.

That pivot is best captured in a sentence on page three: “The special counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.”

Here Barr, without expressly saying what Mueller had in mind, moves beyond summary into crafting an argument. Here’s the setup:

  • The criteria — First, Barr lays out three criteria that need to be met for the crime of obstruction of justice to have occurred: Obstructive conduct, corrupt intent, and a connection to some legal proceeding (such as a criminal trial).
  • The standard — Then he notes that simply believing all those criteria appear to be satisfied isn’t enough. They have to be proven beyond any doubt that could be considered reasonable.
  • The decision — Then Barr delivers the pièce de résistance, saying he and Deputy Attorney General Rod Rosenstein determined that nothing Trump did meets that standard of proof for those elements of the criminal statute. In a key sentence, Barr writes: “The report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”

That corrupt intent part means “there must be a knowing and dishonest state of mind to obstruct, influence, or impede an investigation,” McCord said.

Barr offered one key clue to how he reached a conclusion about Trump’s intent, writing that the fact that Mueller didn’t charge Trump with any crime of collusion “bears upon the president’s intent with respect to obstruction.”

In other words, according to Barr: If Trump didn’t commit a crime related to colluding with Russian agents, he couldn’t have obstructed justice.

But Barr’s argument faces a big problem: the multiple criminal convictions of Trump’s aides, according to Jens David Ohlin, vice dean at Cornell Law School.

Plenty of other people have been convicted of obstructing justice even when they weren’t convicted of an underlying crime, according to legal experts.

“In this case, Trump obstructed justice to stop an investigation that was coming dangerously close to Trump’s campaign and his administration,” Ohlin wrote in an email to VICE News. “If that isn’t corrupt intent, I don’t know what is.”

Ohlin noted that many Trump campaign aides have faced criminal charges and resulting legal proceedings that revolved around the question of their ties to Russians or Russia-linked entities or spies, including:

  • Paul Manafort, Trump’s campaign chairman
  • Michael Flynn, Trump’s first National Security Adviser
  • Michael Cohen, Trump’s longtime attorney
  • Roger Stone, Trump’s longtime political advisor
  • George Papadopolous, a Trump campaign aide

“I think [Barr] made a big mistake when he concluded that Trump did not have the corrupt intent necessary for obstruction of justice, just because there was no evidence that Trump committed a separate crime,” Ohlin wrote. “These two points are analytically distinct, and Barr confused them. It’s entirely possible for an individual to obstruct justice in order to stop a proceeding or an investigation that is targeting that person’s friend, colleague, or family.”

Barr telegraphed this view months ago in a 19-page letter he sent to the DOJ leadership arguing Mueller’s obstruction investigation appeared “fatally misconceived.”

Trump’s motives for firing FBI Director James Comey, or telling Comey to go easy on Flynn, “could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion,” Barr wrote at the time.

But that view “was silly then and is silly now,” wrote Daniel Hemel, a professor of law at the University of Chicago.

Democrats have accused Barr of filing that memo with the DOJ like an audition tape for the job as Trump’s AG, and now demand that he release all of Mueller’s findings.

"We have to see the report," House Speaker Nancy Pelosi, a Democrat from California, said Tuesday, according to CNN. "We cannot make a judgment on the basis of an interpretation by a man who was hired for his job because he believes the President is above the law and he wrote a 19-page memo to demonstrate that."

Here comes Congress

Mueller found at least some of the evidence of obstruction compelling, but he apparently remained unsure whether all the elements of the criminal statute could be proved beyond a reasonable doubt, McCord noted. Then Barr wrote that Mueller’s report contained evidence on “both sides of the question” and “does not exonerate” Trump.

“It’s certainly plausible” that a different attorney general could have reached a different decision, McCord said, although cautioning such a judgment would depend on what’s in the report. “We know there’s a delta there between, ‘He did nothing wrong,’ and, ‘He committed a crime.’”

Barr’s brief letter “leaves people wanting to know: what is the evidence [Mueller] gathered, and what is the reason the Attorney General decided that it wasn’t sufficient to support the charge of obstruction of justice?” McCord said.

Congress has signaled an intense interest in reviewing the evidence for itself — and House Democrats have threatened to subpoena Mueller’s report and underlying evidence if the DOJ doesn’t turn it over.

Congress’ job, after all, would be determining whether Trump committed an impeachable offense, which has a much fuzzier definition than the criminal statute of obstruction of justice.

The Constitution states that a president can be impeached for “high crimes and misdemeanors,” a term long seen as notoriously vague. Former President Gerald Ford once famously declared that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.”

Obstruction of justice factored heavily into the impeachment proceedings of former presidents Richard Nixon and Bill Clinton, even though neither was ever formally charged with a crime.

“There is a difference between the Justice Department’s prosecutorial decision-making and Congress’ political decision regarding how and when to wield its impeachment power,” said Ohlin. “Even if Congress were to accept Barr’s assessment, Congress could still reach the conclusion that Trump’s conduct makes him ineligible to serve in the highest office.”

Neal Katyal, the former solicitor general who two decades ago drafted the special counsel regulations governing Mueller’s work, tweeted that he thinks Mueller may have even intended for Congress — rather than the attorney general — to have the last word on the obstruction question.

Mueller’s spokesman, Peter Carr, declined to comment.

Cover: President Donald Trump speaks at the Governors' Ball in the State Dining Room of the White House in Washington, Sunday, Feb. 24, 2019. Seated left is Attorney General William Barr. (AP Photo/Carolyn Kaster)