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4 Big Problems with Barr’s Report

Attorney General Barr’s letter-report to Congress is not a summary of the findings and conclusions of the Mueller report.  Rather, it summarizes only a single, narrow aspect of the report.   

This much can be said without having the benefit of having seen Mueller’s report itself because the limitations and flaws of Barr’s letter are apparent on its face.

  • Barr’s letter summarizes only “prosecution and declination” decisions, not the results of Mueller’s investigation.

Barr describes his report as a summary of the “principle conclusions” reached by the Special Counsel, “and the results of his investigation.” 

That description is, at best, a half-truth. 

Barr’s letter summarizes only a highly limited subset of Mueller’s “principle conclusions,” Mueller’s decisions not to prosecute, but says nothing about the conclusions that underlie those decisions. 

For instance, on the issue of conspiracy, Barr’s report answers none of the key questions about collusion with Russia.  Did Mueller find substantial evidence of collusion that fell just short of the “beyond a reasonable doubt” standard, or did he find more comprehensively that there was no collusion?  What did Mueller make of all the contacts between Trump associates and Russia, and all the lies they told about them?  We don’t know, but we can safely assume that Mueller’s report addressed those issues in detail.

On the issue of obstruction of justice, Barr tells us that Mueller “ultimately determined not to make a traditional prosecutorial judgment,” but he doesn’t provide any context or explain why Mueller declined to make that judgment.  Is it because he decided that since a sitting president can’t be indicted under existing DOJ guidelines the issue is best left to Congress, because he believed it was best to leave that decision to the Attorney General, or because he believed that the evidence was inconclusive and just threw up his hands?  Again, there is no clue about these fundamental conclusions in Barr’s letter.

And Barr’s claim that his letter summarizes “the results of [Mueller’s] investigation” is just untrue.  It doesn’t.  It does not summarize what Mueller uncovered in his investigation, only the ultimate legal prosecutorial decisions.

The problem here is that making traditional prosecutorial decisions was only a small part of, but not the core of what Mueller was authorized to do.  Rod Rosenstein’s appointment letter was very clear about that.  Mueller was “authorized to conduct the investigation confirmed by then-FBI Director James B. Comey” in testimony before the House, including any “links and/or coordination” between the Russian government and individuals associated with the Trump campaign.  While Rosenstein’s letter also authorized the Special Counsel to prosecute crimes arising from the investigation, it was not limited to prosecutorial decisions. 

The core of Mueller’s charge was to perform an investigation.  Barr’s letter says virtually nothing about the results of that investigation

  • The Barr report is cutely worded to give the impression that Mueller left the decision on Trump’s obstruction of justice to Barr himself, not to Congress. 

Barr says that Mueller’s decision to conclude his investigation “without reaching any legal conclusions” about obstruction “leaves it to the Attorney General” to determine whether Trump’s obstructive conduct constituted a crime.

By making that statement, Barr is suggesting, without directly stating, that Mueller decided that the decision on obstruction was best left to the Attorney General.  We won’t know for sure what Mueller said about this until we see his report, but it is highly unlikely that Mueller intended to hand that decision over to Barr.

In all likelihood, Mueller determined that, since DOJ policy prohibits prosecuting a sitting president, there was no reason to make a traditional, legal prosecutorial decision.  Rather, the issue of obstruction should be left to Congress to determine in the exercise of its impeachment authority, the only way to hold a president accountable under existing DOJ policy.

Again, we can’t know for sure whether Mueller explicitly stated that this was a decision that should be left to Congress until we see his report.  But we would know if Barr had been more forthcoming in his “summary.”

  • Barr’s decision to appropriate for himself the determination of whether Trump committed the crime of obstruction of justice undermines the entire purpose of having a Special Counsel investigation

Neal Katyal, one of the authors of the Special Counsel regulations, wrote in a recent Washington Post op-ed that the regulations at their core are about the age-old problem of “who will guard the guards.”  Nobody should have to power to investigate and judge their own alleged crimes:

“Whenever there are allegations of high-level executive branch wrongdoing, there is a justifiable worry that the executive branch itself cannot adequately investigate it. The Justice Department, after all, is an executive branch agency, and it has the power to squelch any investigation. The special counsel regulations were written to allow someone outside the Justice Department to run the investigation on a day-to-day basis, while making that someone always subject ultimately to the control of the attorney general.”

Barr’s decision to reach his own legal conclusion about Trump’s criminal culpability makes a mockery of the proposition that allegations of presidential wrongdoing should be investigated by an independent body, not by the president himself or his political appointees.  It gives a clear and damning answer to the question of “who will guard the guards:”  Nobody.

Barr is a political appointee of the President whose conduct he took upon himself to judge.  He was chosen to be Attorney General, at least in part, because of his expansive view of presidential authority and his narrow view of obstruction of justice.  Both of those views have their adherents, but they are far outside the mainstream of legal thinking. 

There’s no way Barr should have made that decision, and there was nothing that compelled him to do so.

  • Barr’s legal conclusion that Trump did not obstruct justice fundamentally alters the debate over disclosure of Mueller’s report, and creates an unnecessary obstacle to transparency and disclosure

By making a traditional non-prosecution legal determination, rather than leaving the issue of obstruction to Congress, Barr triggered a longstanding DOJ practice of declining to provide elaborate explanations about decisions not to prosecute alleged crimes.  Former FBI Director James Comey’s violation of the “indict or shut up” rule subjected him to well-deserved criticism for his excoriation of Hillary Clinton at the same time he announced his decision not to prosecute her for any crimes.

By converting Mueller’s investigative conclusions about obstruction of justice into a traditional legal non-prosecution decision, Barr armed Trump’s defenders with a fig leaf to argue that Mueller’s report should not be disclosed to the public.  After all, the argument goes, everybody criticized Comey for elaborating on his decision not to prosecute Clinton, so how can anybody complain about Barr refusing to comment on the Trump non-prosecution decision?

The problem with this argument is that Mueller did not make a non-prosecution decision on Trump’s obstruction of justice. Only Barr did. In one of the few instances where Barr quoted actual language from Mueller’s report, he established that Mueller went out of his way to make it clear that he decided “not to make a traditional prosecutorial judgment.”

Will anybody now be surprised to hear Barr and Trump’s other defenders argue that, because of Barr’s decision not to prosecute, disclosing Mueller’s findings would be a violation of the DOJ’s “indict or shut up” rule? With the stroke of a pen, and less than 48 hours of “deliberation,” Barr threw a cover over a substantial portion of Mueller’s report.

Until we see Mueller’s report, we won’t be able to assess the full extent to which Barr’s report misrepresents, or is designed to cover up, the results of Mueller’s investigation.

But we already know more than enough not to take Barr’s report at face value.

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  1. I am thoroughly astounded that Mr. Barr distilled, absorbed, and gave concentrated thoughtfulness to the two-year, 25 million dollar Mueller report–within 48 hours of receiving it. I can only guess that the report itself was huge. How could a person digest that in 48 hours? And write his summary in that time?

    I can also only guess that Barr went to the bottom line conclusion, just as regular people first do when reading a judge’s order from any litigation. That is all he cared about: recommendation for indictment or not; underlying crimes be damned if they do not rise to the level of “high crimes and misdemeanors.”

    Additionally, Barr is a political appointee, as you say–regardless of the good reputation he brought to his AG job. That political aspect may or may not be pertinent. We will never know. But, he certainly did not do a responsible job for us as a lawyer in this case. Barr is not the president’s lawyer, he is the chief lawyer of the federal government, for the people of the United States.

    Lastly, I believe Mr. Mueller probably did us all a dis-service. Likely he abdicated what should have been clear and precise reporting on his findings–and clear and precise conclusions. He might turn out to be the bad guy in this entire debacle. It looks as if he dodged his direct assignment from Mr. Rosenstein. Perhaps if the Mueller report is released publicly, we will see the detail we wish to know about not only regarding our president, but for all persons associated with both his campaign and his subsequent presidential activities. Given the size of the megaphone Mueller/Barr just gave to the president, Mueller left us in a very bad place.

    1. I share your suspicion about Mueller. My first instinct was that this was a shocking abdication of his responsibility. The only thing I can think of that might change that view – and this is definitely speculation, at least at this point – is that Mueller may have made it clear that although there was substantial evidence of obstruction, since a president can’t be indicted under DOJ guidelines, he was expressly leaving that question to be answered by Congress in an impeachment investigation. Even that wouldn’t make me happy with his ducking the issue, but at least it would go a long way toward explaining why he did what he did, and make him less the “bad guy.” But who knows?

  2. Good analysis. I would no more rely on Barr’s opinions and conclusions without reading the actual report than I would rely on an analysis from the Federalist Society of a secret appellate court opinion that I had not had opportunity to read.

  3. And at the risk of being trivial and schoolmarmish (or English teacherly-marmish) about it, Barr’s ignorance of when to use “principal” and when to use “principle” betrays at least verbal if not conceptual sloppiness. Words matter!

    1. Spelling counts! I live in constant fear that I’m going to look stupid because of something I misspell. Tanks for calling it to my attention.

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