DC DISPATCH-Attorney General Barr took center stage in D.C. last week when he testified before the Senate Judiciary Committee about the Mueller Report.
It was a testy confrontation with the Democrat members, and Barr declined an invitation to follow up with the House Judiciary Committee on the following day.
When asked about the 11 potential instances of Obstruction of Justice that are detailed in the report and incriminate the president, Barr once again dismissed those claims as irrelevant, as he had dismissed in his 3 ½ page “Summary of Conclusions,” issued a month before the redacted Mueller Report was made available to Congress and the public.
Barr argued that the claims were irrelevant because no underlying crime could be identified.
However, failure to find an underlying crime has not prevented the DOJ from bringing obstruction charges in the past, as Scooter Libby and Roger Stone can readily attest. Yet Barr sweepingly concluded—with Rosenstein half-heartedly signaling his concurrence—that the Mueller Report had failed to find enough evidence for either conspiracy or obstruction of justice, anyway.
Meanwhile, during his press conference prior to the release of the report, Barr kept reminding the chiseling reporters about the “No Collusion” conclusion, ignoring Mueller’s own clarification that he had not been looking into “collusion”—which he considered an imprecise term—but had instead been focusing on the crime of conspiracy, which he was unable to find.
Well, it should not need to be said that the generic term of “collusion” covers crimes like conspiracy, and that Mueller’s cited instances of failure to cooperate, missing documents, and encrypted messaging not only made it difficult for him to complete his task of determining with certitude whether or not Trump and his campaign had cooperated with Russians to win the presidency, but also should have tempered Barr’s sweeping pronouncement of innocence.
I doubt that we will ever know the true state of affairs of Mueller’s investigation, but we suspect that it was hardly an ideal work environment. We know that Trump regularly insulted Mueller and his staff on Twitter and characterized their work as a “witch hunt” or a “hoax.” Mueller was accused of conflicts of interest, political bias, and outright lying.
We know that Trump was incessantly trying to interfere with the team’s work behind the scenes, and, I suspect, pushed for a premature conclusion.
It is no wonder that Mueller tried to delegate his investigation to various other offices, including the Southern District of New York.
He painstakingly documented his findings, and provided redacted summaries of both volumes, which Barr repeatedly ignored when referenced.
In Volume 2 of his 448-page report, Mueller was mindful of the OLC guidelines which prohibit indicting a sitting President. Despite Barr’s claim that this was not a factor in Mueller’s decision making, Mueller must know that Trump can and probably will be charged after he leaves office, and did not charge the president at this moment because he would not be able to defend himself until after he left office, anyway.
He therefore investigated the President and listed all the instances of possible obstruction—a road map for Congress to follow, if they chose to do so—but did not exonerate the President.
I’m sure Mueller thought that Barr would adopt his logic, follow the OLC guidelines by not making any findings on obstruction, and instead refer the findings to Congress. My guess is that Mueller never expected that his meticulous, 2-year investigation would be casually overturned in the blink of an eye by a sweeping exoneration.
Trump and Barr figured accurately that people would not read the full report, and they could spin it to match their mantra of “No collusion. No obstruction.”
This facile legal interpretation did not sit well with a DOJ alumni group of prosecutors, who wrote a letter on May 6, 2019, posted on Medium.com, that rebuked Barr’s flippant dismissal of the Mueller Report.
This bipartisan or politically neutral group of DOJ trained investigators and law enforcement officials—which now number over 600—conclude in stark terms that, but for the OLC prohibition, the evidence presented in the Mueller Report would be enough to make numerous felony charges against Trump.
The letter cites a string of examples of alleged obstruction and interference with witnesses that were committed by the President, e.g. Trump’s request that Corey Lewandowski reach out to former AG Jeff Sessions to un-recuse himself and order Mueller to confine his investigation to future instances of Russian interference; Trump’s ordering of McGahn to contact Rosenstein to allege conflicts of interest by Mueller and telling him to let Mueller go; Trump’s request that McGahn change his story to the NYTimes to deny that Trump had tried to remove Mueller; contacting witnesses and dangling pardons...to name a few.
Facing growing claims about grave misrepresentation of the Mueller Report, Barr is now facing a complex series of legal consequences stemming from his misleading summary and his testimony before the Senate, as the House moves to vote on holding him in contempt.
However, while his own representatives negotiate, trying to work out an accommodation, it is unlikely that a long-term compromise will be reached. This is made more unlikely by White House stonewalling on multiple fronts, suggesting that Trump has no interest in disclosing anything.
Mueller may have had “18 angry democrats” to support him, but Trump now has thousands of DOJ lawyers at his disposal and free legal representation for the foreseeable future. He also has his Roy Cohen by his side.
Trump’s goal (executed by Barr) is to tie up all Congressional requests in the courts for the next two years until after the election, and he now has the freedom and resources at his disposal to essentially obstruct justice at will.
While the letter of DOJ alumni is laudable, it does not have teeth. With a divided Congress, the House Judiciary Committee has a daunting task trying to rein in the President, and very few real tools to do so.
Even though they have become the last hope and Senator McConnell is working furiously to stack the odds in his favor, the courts will be called on to decide the fate of the slippery president, the man Comey has called “the Soul Eater.”
(Sara Corcoran writes DC Dispatch and covers the nation’s capital for CityWatch. She is the Publisher of the California and National Courts Monitor and contributes to Daily Koz, The Frontier Post in Pakistan and other important news publications.) prepped for CityWatch by Linda Abrams.