On Sunday, Attorney General William Barr introduced his letter to the Senate and House Judiciary Committees by saying: “I am writing today to advise you of the principal conclusions reached by Special Counsel Robert S. Mueller and to inform you of the status of my initial review of the report he has prepared.” This introduction does not fit his letter, though: If one wanted to advise of the report’s “principal conclusions,” one would expect that more of the “principal conclusions” actually be shared.
Instead, Barr distributed parts of four of Mueller’s sentences throughout his letter—three of which offer any kind of conclusions, and none of which even appear to be complete sentences from Mueller’s text. Those sentences are obviously helpful for Trump legally and politically, but Barr’s short letter—one page on Russia, one page on obstruction—raises more questions than it even tries to answer.
What Barr put out on Sunday was not Mueller’s summary, nor a summary of Mueller. It literally contains more of Barr’s legal conclusions—after just 48 hours of review—than of Mueller’s own conclusions over almost two years of investigation. It contained zero details of the evidence that led to either man’s conclusions. Mueller surely wrote an executive summary of his findings for Barr, and it clearly would have been easier for Barr simply to give Congress and the public Mueller’s summary than to write this letter himself. The question is why Barr didn’t.
In past reports by independent counsels—the closest predecessor to the special counsel—the model has been for the prosecutor to provide an executive summary, an introduction, and/or section-by-section summaries of the counsel’s findings. Lawrence Walsh’s Iran-Contra Report, which went dozens of chapters and hundreds of pages, led with a one-page executive summary listing the five subjects of his investigation, followed immediately by a one-page “Overall Conclusions” section with seven short but damning core findings. Nothing in this summary raised problems for executive privilege or national security. Ken Starr’s referral about President Clinton’s relationship with Monica Lewinsky started with a one-page introduction that also included seven short bullet-point findings that were damning. In its 445 pages, the Starr Report included 11 separate sections for “possible ground for impeachment,” most of which included short summaries. Meanwhile, on Sunday, Barr did not even reveal the length of the report that he had boiled down to four sentences.
It’s worth looking at what from Mueller’s actual report Barr did include in his message to the relevant congressional committees (other than the title of the report itself).
The narrowness of the sentences that Barr selected from Mueller is revealing, and the omissions speak loudly.
First, the topline item that Trump and his allies have taken as total exoneration: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
This conclusion is a good one for the president’s defenders. But it doesn’t address any of the evidence of improper relations between Trump surrogates and Russia that we already know about or explain how Mueller viewed these connections within his framework for finding “no collusion.” What about the actions of informal adviser Roger Stone, who allegedly contacted WikiLeaks to seek information for the Trump campaign? The Mueller team’s indictment of Stone alleges, “After the July 22, 2016 release of stolen DNC emails by [WikiLeaks], a senior Trump Campaign official was directed to contact [Stone] about any additional releases and what other damaging information [WikiLeaks] had regarding the Clinton Campaign.” Who directed the senior official?
What about Paul Manafort and Konstantin Kilimnik? Mueller’s team had already concluded that Manafort lied to investigators about offering detailed polling information to Kilimnik, whom Mueller has identified as having “ties to a Russian intelligence service.” The Mueller team’s own court filings seem to contradict Barr’s letter. What did Mueller’s own summary ultimately determine about these contacts, which are very relevant to Congress’ counter-intelligence mandate? Such contacts do not have to be direct to count as conspiracy or even non-criminal coordination.
Instead of explaining these key details, Barr selects a second sentence from Mueller that has nothing to do with findings or principal conclusions. Barr’s first footnote includes Mueller’s general definition of coordination, to be an “agreement—tacit or express—between the Trump campaign and the Russian government on election interference.” This may clarify what is meant by the non-establishment of coordination, but it is certainly not a “conclusion” or a finding in and of itself.
Barr’s third quotation from Mueller is an excerpt on obstruction of justice: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
This sentence is intriguing, and calls out for more detail, but instead of explaining, Barr’s fourth selection from Mueller dismisses the relevance of an obstruction inquiry: “In making this determination [not to prosecute obstruction], we noted that the Special Counsel recognized that ‘the evidence did not establish that the President was involved in an underlying crime related to Russian election interference.’ ”
Barr does not share any of Mueller’s findings or analysis to explain how he reached his own conclusions. Instead, he offers his own—along with Deputy Attorney General Rod Rosenstein’s—legal analysis in two full paragraphs but no actual details.
Just to underscore this point: Barr offers two paragraphs of his own “principal conclusions,” and just two or three laconic sentences of Mueller’s conclusions. Keep in mind that Barr wrote an unsolicited memo to Trump early in the investigation announcing his own view that a president essentially could not be guilty of obstruction for the act of firing former FBI Director James Comey, one of the central questions of the obstruction case. It is not a surprise, then, that he reached the same conclusion now. Again, this letter—word for word, legal theory for legal theory—shares exactly what we already knew about Barr’s view of the relevant law without telling us anything about Mueller’s factual findings.
Here’s what Barr’s letter does say about his and Rosenstein’s conclusions: “[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, each of which, under the Department’s principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt.” It must not be overlooked that he invoked the standard—and the prosecutor’s necessary consideration—of proving the case “beyond reasonable doubt.” An indictment requires probable cause, but Barr, and presumably Rosenstein, held the evidence to a higher standard. It is wise for a prosecutor to bring charges not for the barest margin of evidence over the threshold, but to think about the prudence of a trial. Barr and Rosenstein are surely wise to take that trial standard into account in determining whether an indictment might be warranted. But if Barr held himself to that high evidentiary standard to justify his decision not to bring charges, surely it is also relevant to ask whether Mueller’s team also held itself to that same rigorous “beyond a reasonable doubt” standard both on questions of obstruction and conspiracy.
It matters if Mueller had sufficient evidence for probable cause on either of these questions but decided it was insufficient evidence for a prudent indictment with an eye toward a trial and a realistic conviction. Probable cause is relevant for Congress and for the public.
Barr’s letter also makes a point against an obstruction indictment that has been criticized but should be given some credit. As noted earlier, Barr explains that he and Rosenstein took into consideration that there was no legal finding of an underlying crime in declining to prosecute for obstruction. It is problematic that Barr used this non-finding to avoid discussing the facts of obstruction, but it is a realistic consideration in a complicated obstruction case. Barr himself writes, “while not determinative, the absence of such evidence bears upon the evidence of the president’s intent with respect to obstruction.” It is true that one can be guilty of obstruction without finding sufficient evidence of an underlying crime. And of course, the goal of obstruction is to make it harder for investigators to find that underlying evidence, so Barr’s claim that “evidence does not establish” an underlying crime should be appropriately discounted. Nevertheless, given the political costs and the overstated but persistent legal challenges in indicting a sitting president, the strength of the evidence of an underlying crime is more relevant than some critics have acknowledged. Ultimately, it is a reasonable view that the obstruction case is more quintessentially an abuse of power question more appropriate for congressional investigation and a potential impeachment inquiry. As a result, Barr’s decision not to indict all the more demands his cooperation with Congress to deliver the full Mueller report.
Maybe Barr intends to release the report to Congress and the public soon enough that these questions will be resolved by a full reading. But in that case, why rush such a cursory letter with so little evidence or analysis to be helpful? And if Mueller’s report were really so supportive of these legal conclusions, why would Barr offer so little of it, and so much more of himself? Barr is certainly wise enough to know that a significant portion of the report will have to be made public at some point, so it is hard to imagine that he would misrepresent it. But it is also hard to read this document as a true attempt to summarize Mueller’s report rather than an attempt at Barr’s spin and an extension of his extreme views of presidential power. The letter only raises concerns about how Barr and his DOJ will navigate the legal issues ahead, including Congress’s legal claims to actually read the full report, which could draw out over many months.
These sentences from Mueller—as curated by Barr—understandably have given Trump a political boost and decreased his legal peril, at least temporarily. But in writing such a short letter with so much of himself and so little of Mueller, and so quickly that it seems implausible that he actually had time to deliberate, Barr has made the case for releasing the full report stronger. If he has accurately represented Mueller’s report, he would be wise to release it soon and release it completely.