In no small part because of the performance on Thursday of Attorney General William Barr, history will treat his Justice Department as it treats the Justice Department under Richard Nixon’s one-time attorney general, John Mitchell—an institution compromised by rank partisanship and more committed to ideology than the rule of law. Barr’s spin on special counsel Robert S. Mueller’s report all but ignored the report’s damning findings, misrepresented significant parts of Mueller’s reasoning, and described President Donald Trump’s motivations and supposed cooperation in terms straight out of White House talking points. Barr engaged in word-splitting pettifoggery that would make even Bill Clinton blush. Barr is clearly compromised by the partisan goals of this White House to the point where he cannot be trusted in the job. He should resign immediately.
Barr started Thursday’s pre-report rebuttal by reiterating that “the special counsel found no ‘collusion’ by any Americans in the [Russian Internet Research Agency’s] illegal activity.” Using the word collusion was itself slippery given that collusion could take the form of an explicit illegal agreement or, in common parlance, just a “connivance,” or tacit encouragement, or assent to wrongdoing by another. It was precisely because of the ambiguity of collusion that the report avoids the term:
In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” […] [C]ollusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.
In other words, Mueller did not find “no collusion”; what he found was insufficient “evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government—or at its direction, control, or request—during the relevant time period.” Mueller doubted he could prove beyond a reasonable doubt that participants in the June 9, 2016, Trump Tower meeting violated the federal election-law ban on contributions and donations by foreign nationals. Such proof would require both a demonstration of their willfulness and that the information received by the Trump campaign was “a thing of value” worth at least $2,000 for a criminal violation or $25,000 for felony indictment.
An inability to prove the elements of criminal conspiracy beyond a reasonable doubt hardly belies the Trump campaign’s tacit encouragement of or assent to Russian wrongdoing. Collusion of that sort is amply shown by the Mueller investigation’s documentation of over 100 contacts between the campaign and Russians hoping to tilt the election to Trump. Indeed, for encouragement, one need look no further than candidate Trump’s July 27, 2016, statement: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”
Barr’s discussion of obstruction of justice is even worse for Trump. In his four-page account of the Mueller report, Barr said he and Deputy Attorney General Rod Rosenstein had determined from the Mueller report that no criminal obstruction of justice had occurred. He said they were not basing their conclusion on a view that sitting presidents could not be indicted: “Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” At today’s press conference, Barr tried to make it sound as if Mueller’s decision not to charge the president was also made without regard to that theory:
When we met with [Mueller] … we specifically asked him about the OLC opinion and whether or not he was taking a position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He was not saying that but for the OLC opinion, he would have found a crime.
Here is what the report actually states:
We considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. … Fairness concerns counseled against potentially reaching that judgment when no charges can be brought. The ordinary means for an individual to respond to an accusation is through a speedy and public trial, with all the procedural protections that surround a criminal case. An individual who believes he was wrongly accused can use that process to seek to clear his name. In contrast, a prosecutor’s judgment that crimes were committed, but that no charges will be brought, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.
The concerns about the fairness of such a determination would be heightened in the case of a sitting President, where a federal prosecutor’s accusation of a crime, even in an internal report, could carry consequences that extend beyond the realm of criminal justice. OLC noted similar concerns about sealed indictments.
In short, for Barr’s statement to be regarded as truthful, you have to interpret the notion of “but for” cause very, very narrowly. Parsed narrowly, Mueller does not say that he would have charged a crime “but for” the OLC opinion. He also relied on “fairness considerations” noted in the OLC opinion. Saying, however, that Mueller’s failure to charge obstruction was not based on the Justice Department’s policy regarding incumbent presidents puts us in the same territory as wondering what “the definition of ‘is’ is.”
Barr’s tendentiousness is all the more notable if one reads just one paragraph further in the Mueller report: “[I]f we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment.”
Beyond this, Barr applauded Trump for taking “no act that in fact deprived the special counsel of the documents and witnesses necessary to complete his investigation.” This ignores Trump’s refusal himself to be interviewed, a critical omission in an investigation of a crime that turns significantly on a suspect’s state of mind. Barr further implicitly excused Trump’s outbursts directed at ending the Russia investigation as a reflection of Trump’s agitated state of mind: “There is substantial evidence to show that the president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” When a reporter suggested his remarks were “quite generous to the president, including acknowledging his feelings and emotions,” Barr insisted “the statements about his sincere beliefs are recognized in the report.” However, the report offers no explicit conclusions about the president’s sincerity at all, which, in any event, would appear to be legally irrelevant as to his motivations.
In an earlier work discussing the importance of government lawyers to maintaining the rule of law, I wrote of the essential “self-discipline for those immediately involved in [executive branch decisions] to actually concern themselves with perspectives and interests other than the partisan agenda they all share.” The attorney general today showed none of that discipline. Worse, his leadership surely sends a message to other Justice Department lawyers as to their expected priorities. This kind of leadership and the debasement of government lawyering it augurs will take years to repair, as it did in the wake of Mitchell himself. There is no way to begin that job until Barr is out of office.
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