Attorney General William Barr submitted a short letter to Congress and the public on Sunday explaining the conclusion of special counsel Robert Mueller’s investigation. It is an elegant little note that leaves more questions unanswered than it answers.
As a political document, Barr’s letter is brilliant. It framed the conclusions in the most positive way for the president while setting forth the most anodyne facts and only four partial quotes from what’s been described as the “comprehensive” Mueller report. The resulting headlines are exactly what the Trump administration wished for.
The most important statement in the letter was this one, apparently a direct quote from Mueller:
[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
In a footnote to the letter, it defines “coordination”:
In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordination” as an “agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.
Barr further explained that the special counsel had not offered any judgment as to whether the president had obstructed justice, deciding instead to simply lay out the evidence uncovered on both sides, and explicitly saying that this did not exonerate the president. Barr then said he had personally determined that the president was in the clear. This should come as no surprise to those who read his memo to the White House before being nominated, in which he described the Mueller theory of obstruction of justice was “fatally misconceived.”
Although Barr’s statement on the suspected collusion in the election interference case sounds conclusive, informed lawyers parsing his language suggest that it’s may not be an unequivocal as is seems. Former federal prosecutor Ken White writes in the Atlantic:
When prosecutors say that an investigation “did not establish” something, that doesn’t mean that they concluded it didn’t happen, or even that they don’t believe it happened. It means that the investigation didn’t produce enough information to prove that it happened. Without seeing Mueller’s full report, we don’t know whether this is a firm conclusion about lack of coordination or a frank admission of insufficient evidence. The difference is meaningful, both as a matter of history and because it might determine how much further Democrats in Congress are willing to push committee investigations of the matter.
It’s also notable that this narrow construction of “election interference activities” doesn’t answer some of the other important questions about whether Trump might have been compromised by Russia due to his lies about the secret $300 million deal for Moscow Trump Tower, or why he seemed so eager to lift sanctions on Russia after the 2016 election. Indeed, it doesn’t examine any of the details we’ve been reading about over the past two years, or the behavior we’ve seen with our own eyes. These are all questions that simply must be answered. Bill Barr’s sparse prose and carefully edited quotes won’t do.
The letter characterizes the Mueller investigation as a strictly prosecutorial enterprise. But it was also a counterintelligence investigation, which will require a briefing to the Intelligence committees on Capitol Hill. Perhaps that’s where the answers will be found concerning Trump’s odd, secretive behavior toward Vladimir Putin and the ramifications of his possible kompromat or quid pro quos, which would have nothing to do with the election hacking and interference campaign. Those are live issues that Congress has a solemn duty to pursue.
Why did Mueller leave the question of obstruction open? Many prosecutors find that very odd indeed. But there’s precedent for a special prosecutor to leave that question unanswered. During the Watergate scandal, Leon Jaworski’s office sent the evidence it had to Congress without a conclusion about President Nixon’s guilt. Jaworski believed that the political process was the proper venue to decide whether the president had committed an impeachable offense.
Barr appears to have decided that Trump couldn’t have had the intent to cover up a crime he didn’t commit. That’s nonsense. If someone is successful at obstructing justice, it may well be impossible to prove he committed the underlying crime. That’s the whole point.
This is one reason why proof of an underlying crime is not required for an obstruction charge. There are thousands of such cases around the country, including some famous examples, like those of Martha Stewart and Scooter Libby. But it’s especially clear that this is a fatuous argument in cases of possible impeachment. There was never any evidence that Richard Nixon knew about the Watergate break-in. He was impeached for the cover-up and abuse of power. Likewise, Bill Clinton was impeached for obstruction of justice for allegedly trying to influence his secretary’s testimony and having a friend seek a job for Monica Lewinsky in order to cover up his illicit affair. The Paula Jones civil case underlying the alleged perjury and cover-up was dismissed by a judge.
In both of those cases, the Justice Department did not come to a conclusion, instead leaving it up to Congress and the public to decide. Barr chose to do something very different by making his own determination. Since we know that Barr held strong views about presidential obstruction of justice before he ever saw any evidence, and only took 48 hours to make the determination, this decision calls his judgment into question.
Under the Justice Department rules, it was within the attorney general’s prerogative to summarize the report with a terse explanation and determine its conclusions for himself. But in exercising that right the way he has, Barr didn’t do himself or the president any favors. If the Mueller report really does exonerate the president, as Barr says, then there should be no problem releasing it to the public. If the evidence is less unequivocal, when the report does come out Barr will looks like he was covering it up.
And it will come out. Last week the House voted unanimously for the Mueller report to be released. That vote was backed up by the one guy who should be thrilled to see his full vindication exposed in all its detailed glory:
The bottom line is that while Trump and his supporters are understandably taking a victory lap based upon Barr’s letter, they shouldn’t fool themselves into thinking this is over. There are still dozens of questions that must be answered. The special counsel investigation may have come to an end, but the congressional investigations have just begun.