The Four Loopholes Barr Used to Protect Trump

William Barr speaking
Attorney General William Barr speaks at a news conference in Washington on Thursday.
Jonathan Ernst/Reuters

On Thursday morning, Attorney General William Barr announced the release of special counsel Robert Mueller’s report on the Russia investigation. In his press conference, Barr extended his role as President Donald Trump’s protector. Following the strategy of his March 24 letter on the Mueller report, Barr constructed loopholes to insulate Trump from charges of collusion and obstruction. Here are four of them.

1. “Illegally participated.” Barr made the following statement:

The special counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet. The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication. Wikileaks then made a series of document dumps. The special counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts. Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy. Here too, the special counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

Notice the shift in Barr’s language. He starts by talking about whether anyone affiliated with Trump “encouraged or otherwise played a role” in the dissemination. But Barr doesn’t answer that question. Instead, he shifts to a different question: whether any Trump affiliates “illegally participated” in the dissemination. The answer, he says, is no, because WikiLeaks’ publication of the hacked material isn’t criminal. This distinction protects Roger Stone, a Trump campaign associate who colluded with WikiLeaks to promote the distribution of the hacked emails.

2. “Conspiracy to violate U.S. law.” Barr continued:

The special counsel investigated a number of “links” or “contacts” between Trump campaign officials and individuals connected with the Russian government during the 2016 presidential campaign. After reviewing those contacts, the special counsel did not find any conspiracy to violate U.S. law involving Russia-linked persons and any persons associated with the Trump campaign.

This paragraph covers the June 2016 meeting at Trump Tower between leaders of the Trump campaign and Russian intermediaries who had explicitly, as “part of Russia and its government’s support for Mr. Trump,” offered to give Donald Trump Jr. “official documents and information that would incriminate Hillary … and would be very useful to your father.” This meeting meets the layman’s definition of collusion. But under Barr’s analysis, and ostensibly Mueller’s, it doesn’t constitute a “conspiracy to violate U.S. law.”

3. “Illegally interfere.” In sum, Barr concluded, the investigation “confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.” Here, Barr introduces the word collusion in order to deny that Trump or any of his associates engaged in it. Until this point, Barr carefully used the word conspiracy in order to shield the Trump campaign from culpability for its collusions. But now he shifts to collusion in order to create an appearance that Trump and his associates have been fully exonerated. And to make this claim technically accurate, he inserts the phrase “illegally interfere,” which excludes the Trump Tower meeting and the Stone-WikiLeaks contacts from consideration.

4. “No collusion.” Having shuffled between conspiracy and collusion in order generate an impression that no collusion occurred, Barr then used that claim to argue that Trump’s attempts to obstruct the investigation weren’t obstruction of justice. Trump had a “sincere belief that the investigation was undermining his presidency,” said Barr—never mind that the same could have been said of President Richard Nixon’s Watergate cover-up—and, as Trump “said from the beginning, there was in fact no collusion.” Given the absence of collusion, according to Barr, Trump’s efforts to thwart the investigation weren’t criminal. This sleight of hand insulates Trump against the argument that the offenses whose discovery he tried to prevent were, if not prosecutable, impeachable.

Barr auditioned for his job by writing a memo outlining how to protect Trump from the investigation. As attorney general, he has used his position to fulfill that mission. He’s a clever lawyer, and his efforts to shield the president pay close attention to legal distinctions. That does not, however, make them honest.