On Wednesday, Attorney General William Barr testified before the Senate Judiciary Committee about his handling of Special Counsel Robert Mueller’s report. The hearing was the first opportunity for the public to understand Barr’s legal reasoning for exonerating Donald Trump of obstruction of justice, after Mueller explicitly stated that the special counsel could reach no such conclusion. Barr had previously explained his reasoning in a four-page summary letter released weeks before the full report, in which he suggested that no obstruction could have been committed because the probe did not uncover enough evidence to establish an underlying criminal conspiracy to cooperate with the Russians in their election interference. This argument is a clearly incorrect interpretation of the obstruction statute; it’s possible to obstruct justice even if no underlying crime is discovered, and there were many other underlying crimes uncovered by the probe that reached into the president’s inner circle. The line of thinking was also supplemented by Barr’s remarkable press conference prior to the Mueller report’s release, in which he further argued that the president’s actions were all fine because they were motivated by legitimate frustrations with the probe.
During his testimony on Wednesday, Barr repeated that “legitimate frustration” defense of the president. He also spoke extemporaneously and precisely about his reasons for clearing the president in one of the most damning incidents of likely obstruction of justice described in the report: Trump’s efforts to get former White House counsel Don McGahn to have Mueller fired, and subsequent efforts to cover up that attempt. In doing so, Barr made clear that he has ignored Mueller’s own legal analysis and mischaracterized Mueller’s evidence. Here’s how Barr’s comments contradict Mueller’s own version of several of the allegations of obstruction of justice.
Allegation: Trump ordered McGahn to tell Deputy Attorney General Rod Rosenstein that Mueller had conflicts of interest and must be removed.
What the Mueller report says:
When the President called McGahn a second time to follow up on the order to call the Department of Justice, McGahn recalled that the President was more direct, saying something like, “Call Rod, tell Rod that Mueller has conflicts and can’t be the Special Counsel.” McGahn recalled the President telling him “Mueller has to go” and “Call me back when you do it.” McGahn understood the President to be saying that the Special Counsel had to be removed by Rosenstein.
What Barr said:
McGahn’s version […] is that the instruction said “go to Rosenstein, raise the issue of conflict of interest, and Mueller has to go because of this issue of conflict of interest.” … [T]he president later said that what he meant was that the conflict of interest should be raised with Rosenstein, but that the decision should be left with Rosenstein. [I]t appears that McGahn feels that it was more directive and the president was essentially saying push Rosenstein to invoke a conflict of interest to push Mueller out.
Mueller’s report shows that Trump ordered McGahn to call Rosenstein and have him remove the special counsel on baseless—according to both McGahn himself and presidential adviser Chris Christie—conflict of interest grounds. Barr describes it instead as a he said, he said, saying that Trump’s versions of events is that there was never an instruction. Mueller relies on McGahn’s contemporaneous notes and the testimony of several Trump aides to determine that McGahn’s version is the credible one. Barr relies on what Mueller demonstrated to be one of Trump’s many lies, which the president delivered in a follow-up conversation with McGahn. (Trump refused to testify willingly, did not answer written questions about obstruction of justice, and Mueller opted not to attempt to subpoena the president.)
Allegation: Trump requested McGahn rebut a New York Times story describing the president’s efforts to have the special counsel removed.
What the Times story said:
Amid the first wave of news media reports that Mr. Mueller was examining a possible obstruction case, the president began to argue that Mr. Mueller had three conflicts of interest that disqualified him from overseeing the investigation, two of the people said.
What the Mueller report said:
The President told [White House staff secretary Rob] Porter that the article was “bullshit” and he had not sought to terminate the Special Counsel. The President said that McGahn leaked to the media to make himself look good. The President then directed Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel. Porter thought the matter should be handled by the White House communications office, but the President said he wanted McGahn to write a letter to the file “for our records” and wanted something beyond a press statement to demonstrate that the reporting was inaccurate. The President referred to McGahn as a “lying bastard” and said that he wanted a record from him. Porter recalled the President saying something to the effect of, “If he doesn’t write a letter, then maybe I’ll have to get rid of him.”
What Barr said:
The New York Times story said flat-out that the president directed the firing of Mueller. He told McGahn, fire Mueller. Now there’s something very different between firing a special counsel outright, which suggests ending the investigation, and having a special counsel removed for conflict, which suggests that you’re going to have another special counsel. … So we believe that it would be impossible for the government to establish beyond a reasonable doubt that the president understood that he was instructing McGahn to say something false, because it wasn’t necessarily false.
The Times interpreted the order to have Mueller removed for conflict as an order to fire him. That was McGahn’s interpretation as well and, again, one that Mueller accepted. The Mueller report says McGahn understood the letter that he was expected to write was intended to create a false story, not publicly quibble over the meaning of the word fire. Trump’s behavior in calling him a “lying bastard” and saying the story was “bullshit” would lean toward the McGahn, Times, and Mueller interpretation of things. But at this point Barr seems to concoct a legal defense out of thin air for the president, parroting Trump’s objection to the use of the word fire and quibbling that a “firing” is technically different from “having a special counsel removed for conflict.” In reality, as documented in excruciating detail by Mueller, during an Oval Office meeting with McGahn and chief of staff John Kelly, Trump denied ever having ordered that Mueller be removed. This portion of the report is like a bad Abbott and Costello, with McGahn repeatedly reminding the president of what he actually said and Trump saying various versions of “I never said that.” There is no way to read this portion of the report the way that Barr has, as Trump merely objecting to the use of the word fired rather than the entire premise that he sought Mueller’s removal.
Allegation: Trump instructed McGahn to create a false paper trail to demonstrate that Trump hadn’t asked McGahn to fire Mueller.
What the Mueller report says:
The President’s repeated efforts to get McGahn to create a record denying that the President had directed him to remove the Special Counsel would qualify as an obstructive act if it had the natural tendency to constrain McGahn from testifying truthfully or to undermine his credibility as a potential witness if he testified consistently with his memory, rather than with what the record said.
As previously described, […] substantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed …
[E]vidence indicates that by the time of the Oval Office meeting the President was aware that McGahn did not think the [New York Times] story was false and did not want to issue a statement or create a written record denying facts that McGahn believed to be true. The President nevertheless persisted and asked McGahn to repudiate facts that McGahn had repeatedly said were accurate.
What Barr says:
McGahn had weeks before already given testimony to the special counsel, and the president was aware of that. As the report indicates, it could have also been the case that he was primarily concerned about press reports and making it clear that he never outright directed the firing of Mueller. So, in terms of the request to ask McGahn to memorialize that fact, we do not think in this case that the government could show corrupt intent beyond a reasonable doubt.
Again, Barr is turning this into a he said, he said, despite the fact that Mueller says there’s substantial evidence that indicates McGahn’s version is correct and there is “evidence [that] cuts against” the interpretation more favorable to the president.
What can we take from the wide discrepancy between so many of Barr’s comments on Wednesday and what the Mueller report says? Barr seems to be blatantly demonstrating that he never intended to consider Mueller’s evidence—the underlying interviews, memos, and accounts that the special counsel’s office painstakingly compiled over years—in his effort to assess the obstruction of justice charges.
That’s exactly what Sen. Kamala Harris attempted to get at in her questioning of Barr. As Harris said afterward: “No prosecutor worth their salt would make a decision about whether the President of the United States obstructed justice without reviewing the evidence.” On Wednesday, Barr showed that he was never approaching this case as a prosecutor. He’s always been acting as counsel for the defense.