How Barr Outwitted Mueller

Robert Mueller’s special counsel report raised many questions about his interpretation of the mandate he received two years ago from Assistant Attorney General Rod Rosenstein. Mueller took over an ongoing FBI counterintelligence investigation into whether President Donald Trump was guilty of conspiring with Russian agents, and he was also asked to reach a conclusion about whether Trump was guilty of obstruction of justice because of what he did to close down the investigation.

In the first part of his report, Mueller goes to great length to describe Russian efforts to interfere with the election and clearly states that his “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Mueller’s exoneration of Trump and his campaign on that accusation is clear. Democrats such as House Intelligence Committee chairman Adam Schiff, who are unwilling to give up their belief that Trump was conspiring with the Russians, have been trying to twist Mueller’s words to suggest that evidence still might be found proving that Trump and his campaign were in cahoots with the Russians. But it is highly unlikely that such evidence would remain undiscovered after three years of intense investigation by the FBI and Mueller’s team, including efforts to pressure former members of the Trump campaign, such as Michael Flynn, Paul Manafort and Michael Cohen, to become witnesses against the president.

All of the charges that Mueller’s team ultimately filed against Trump’s associates were for criminal acts unrelated to the alleged criminal conspiracy with the Russians. The main evidence that such a conspiracy ever existed was the suspect dossier compiled by former British spy Christopher Steele. When it emerged that Steele had been secretly paid by the Clinton campaign and the Democrat National Committee to produce the dossier, and that its allegations were based on information from Russian sources that could not be verified, Trump and his defenders felt vindicated. They began a counterattack on the legitimacy of the investigation, which has gained new momentum under the steady prodding of Attorney General William Barr.

INSUFFICIENT EVIDENCE

The absence of any reliable evidence to prove the existence of a criminal conspiracy between the Trump campaign and the Russians was always a problem for the investigators. That is why FBI agent Peter Strzok launched the FBI probe in July 2016 as a counterintelligence operation rather than as a criminal investigation.

The inability of the FBI probe to find additional evidence to confirm the existence of such a conspiracy prompted FBI and Justice Department officials to vouch for the authenticity of the dossier, even though they knew that its allegations could not be verified, as their main justification for requesting a secret surveillance warrant from the FISA court against Carter Page, a low-ranking advisor to the Trump campaign.

The explosive charges in the dossier fulfilled their originally intended purpose. After getting FBI officials to accept the sensational accusations of the dossier discrediting Trump and his campaign as the basis of their investigation, they were also accepted by the pro-Clinton mainstream media, creating a political firestorm of criticism in support of the Democrats’ anti-Trump resistance campaign following the election. But the wild charges in the dossier and the true story behind its creation could not withstand serious investigative scrutiny.

OBSTRUCTION REPLACES COLLUSION

As hope slowly faded that Mueller and his pro-Democrat team of prosecutors would be able to prove at least some of the charges in the dossier, Trump’s enemies began to concentrate on the second half of Mueller’s mandate from Rosenstein, the charge that Trump was guilty of obstruction of justice by firing Jim Comey and other actions he took to end the Mueller investigation.

But the task of making a legal case that Trump criminally obstructed justice was more difficult, because it required the prosecutor to show evidence that the president acted with criminal intent. If the suspect was covering up his guilt in an underlying crime, his criminal intent becomes obvious. But if the suspect was known to be innocent of the underlying crime, his criminal intent for interfering with an investigation becomes much more difficult to prove.

DOES THE PRESIDENT HAVE CONSTITUTIONAL IMMUNITY?

The case becomes even more complicated because Trump is president of the United States. There is a fundamental legal dispute over whether the president’s constitutional status as the head of the executive branch of the federal government provides him with a level of legal immunity for his actions in that capacity.

According to the unitary executive power theory championed by late Supreme Court Justice Anton Scalia, the president cannot be criminally prosecuted for any actions he takes under his authority as chief executive, such as firing the director of the FBI or even a special counsel. The unitary executive power theory is now a cornerstone of conservative legal thinking and served as the basis for a lengthy memo that Barr submitted as a private citizen to the Justice Department in June 2018, criticizing the basis for the obstruction of justice aspect of the Mueller investigation.

Barr was not an early supporter of Trump’s candidacy. Barr had served as attorney general for President George H.W. Bush and originally supported the 2016 presidential candidacy of his son, former Florida Governor Jeb Bush. But once Trump became president, Barr supported his authority to fire Acting Attorney General Sally Yates over her refusal to defend one of Trump’s executive orders. When Robert Mueller was appointed special prosecutor, Barr publicly criticized him for hiring a politically unbalanced team of prosecutors dominated by contributors to Democrat candidates, including Hillary Clinton’s presidential campaign.

SCALIA’S UNITARY EXECUTIVE POWER THEORY

Barr’s June 2018 memo criticizing the special counsel’s obstruction of justice investigation was based upon his support for Scalia’s unitary executive power theory, rather than any partisan political objections. According to the analysis of former federal prosecutor Andrew McCarthy, writing in National Review, the key weaknesses in Robert Mueller’s report arose from the fact that he disagrees with Scalia’s unitary executive theory, yet had to operate during his final days as special counsel under the authority of an attorney general who is an advocate for Scalia’s theory.

As McCarthy explains, Barr “believes that (a) obstruction charges may not be based on exercises of a president’s constitutional prerogatives — only on obviously corrupt acts, such as evidence destruction or the bribing witnesses; (b) all executive power under the Constitution is reposed in the president; and thus, (c) when the chief executive takes actions that the Constitution empowers him to take, such as firing or threatening to fire subordinates, it is not the place of a lower ranking member of the executive branch, such as a federal prosecutor, to second-guess them as ‘corruptly motivated.’”

In addition, McCarthy wrote that Barr believes that the impeachment of a president must be based upon “crystal clear” evidence of serious wrongdoing, because “you don’t tear the nation apart over something about which reasonable minds could differ.”

WHEN DOES A PROSECUTOR OUTRANK A PRESIDENT?

On the other hand, according to McCarthy, Mueller and his prosecutors operated their investigation based upon very different legal theories of executive power and what obstruction of justice means. They believe that “(a) the executive bureaucracy is semi-autonomous in its areas of expertise, and thus Justice Department prosecutors are supreme, even over the president, in matters of law enforcement; (b) Congress had the constitutional power to, in effect, transfer executive authority from the president to prosecutors by enacting obstruction laws that may be enforced against the president; and therefore, (c) even if a presidential action is lawful in itself, a prosecutor may allege obstruction if the prosecutor believes the president’s motive was corrupt.”

These legal differences did not matter to Mueller’s investigation as long as it was under the supervision of Assistant Attorney General Rod Rosenstein. He assumed authority over the original FBI investigation when former attorney general Jeff Sessions recused himself, in accordance with regulations on how Justice Department officials should handle situations that may give the appearance of a conflict of interest. Sessions had been a prominent member of the 2016 Trump campaign and had come under criticism for initially failing to disclose routine meetings he had with Russian ambassador Sergei Kislyak during the 2016 campaign.

Trump’s firing of FBI director James Comey in May 2017 created another firestorm of partisan controversy. Rosenstein appointed Mueller as special counsel to take over the ongoing FBI counterintelligence probe and expanded it to look into Trump’s actions, as revealed in memos that Comey leaked to the New York Times, to determine if they amounted to criminal obstruction of justice.

DID ROSENSTEIN OVERSTEP HIS AUTHORITY?

McCarthy has long argued that Rosenstein’s appointment of Mueller to serve as special counsel was inappropriate in the first place. According to current federal regulations, the special counsel operates as a member of the Justice Department to assure the independence of the investigation of criminal cases, not counterintelligence investigations. Justice Department procedure calls for the existence of an underlying crime to be proven before such a criminal investigation can go forward.

Yet, Rosenstein ordered the Mueller investigation to go forward anyway, and gave his assurances to congressional Democrats that he would allow Mueller to proceed without any interference from him. That meant that as long as Rosenstein was in charge overall, Mueller and his investigator had the authority to conduct their investigation according to the legal theory that Congress had given them independent authority over the president through the statute against obstruction of justice. They also believed that they could accuse the president of violating that statute if they believed that actions he took using his executive powers as president, no matter how minor, were corruptly motivated.

BARR CHANGES THE RULES OF THE GAME

Once Barr was appointed attorney general and took over control of the investigation from Rosenstein, the ground rules changed. Justice Department regulations require the special counsel to deliver his findings to the attorney general in a confidential report and then leave it to the attorney general to decide whether to go forward with the report’s recommendations. That meant that if Mueller had concluded that Trump should be indicted for obstruction of justice, he would have to submit that finding to Barr, who undoubtedly would have rejected it because of his different understanding of the obstruction statute.

Unlike the much more passive Rosenstein, Barr was an expert in those laws, having previously served as head of the Bush 41-era Justice Department’s Office of Legal Council. In McCarthy’s words, “he was not going to be intimidated or bulldozed by Mueller’s staff,” and in any direct confrontation over the meaning of the law, Mueller and his prosecutors understood that the attorney general’s interpretation based upon Scalia’s legal reasoning would inevitably prevail.

Mueller and his prosecutors were well aware of the opinion of policy recommended by the Office of Legal Council (OLC), which does not permit the indictment of a sitting president, because it would inevitably interfere with his duties as chief executive. However, OLC opinions permit and even encourage the secret investigation of a sitting president for crimes he may have committed, as long as his indictment and trial are deferred until after he leaves office.

MUELLER PURSUED HIS OWN AGENDA

Mueller and his prosecutors were not content to wait. They understood their role to be finding evidence of Trump’s guilt for obstruction of justice that could be turned over to Congress immediately for use in an impeachment proceeding. But that meant finding a way to get the evidence against Trump in their report released to the public without Barr blocking them by raising the legal question about the definition of presidential obstruction of justice.

Mueller and his team came up with the strategy of sidestepping the obstruction of justice issue by simply refusing to issue a formal conclusion regarding Trump’s guilt on that charge. As their excuse, they used the OLC opinion prohibiting the indictment of a sitting president, even though it did not prohibit reporting on the result of its investigation of the obstruction charge. Technically, the decision on whether to indict the president would have been up to the attorney general, after considering the findings and recommendations of the investigation and the OLC guidance.

The problem with refusing to make any conclusion on the obstruction charge was that Mueller had been appointed special prosecutor two years ago with a specific mandate to reach a prosecutorial judgment over whether Trump was guilty of criminal conspiracy with the Russians and obstruction of justice. When it became clear much earlier, during the FBI stage of the investigation, that there was insufficient evidence that a conspiracy with the Russians ever existed, Trump’s innocence on the first charge became obvious. The only justification for continuing the investigation under Mueller was to resolve the obstruction of justice question, which meant that Mueller and his team had to come up with a valid reason for refusing to address it.

CATCHING BARR BY SURPRISE

When Mueller informed Barr and Rosenstein during a March 5 meeting that he would not be deciding the obstruction question, Barr was taken aback. When Barr asked Mueller whether his reason was the OLC guidance against indicting a sitting president, Mueller denied it. He knew that if he had said anything else, Barr would have told Mueller to go ahead and make his recommendation despite the OLC guidance, leaving the indictment decision up to the attorney general. Mueller also knew that he could not tell Barr the truth that the obstruction section of his report had always been intended for use as a guide for a congressional impeachment investigation.

Mueller told Barr that he and his team had reached a firm decision, but were still formulating their rationale for declining to render a conclusion on the obstruction charge. Barr then instructed Mueller to complete and mark his report so that the secret material it contained could be redacted quickly for public release. Mueller ignored Barr’s instructions and delivered the finished report to Barr on March 22, without reaching a conclusion on the obstruction charge, and without any markings to indicate the grand jury and other secret material that would have to be redacted before the report could be released.

It was also clear that when Mueller wrote in his report that he would have “exonerated” the president of obstruction if he could have, he wanted Congress and the public to presume that if it were not for the OLC guidance, he would have charged the president with obstruction.

Mueller and his team believed that if their report cited evidence of obstruction by Trump but sidestepped the indictment issue, Barr would not be able to reject it outright, because the attorney general had publicly pledged full transparency in the report’s handling during his Senate confirmation hearing. They also knew that if Barr’s release of the report was significantly delayed because of legal necessity to redact it, after the public learned that Mueller had submitted it, Barr would be accused of trying to conceal its results to protect Trump. The media would also be eager to publish leaks discretely provided by Mueller’s team of the evidence of obstruction contained in the report. That would build public support for Democrats demanding impeachment, without forcing Mueller to come out from behind his carefully crafted image of impartiality and explicitly calling for it.

BARR’S REVENGE

Barr defeated Mueller’s strategy when he decided that, after waiting for two years, the public had a right to know the basic results of Mueller’s investigation immediately, before the full report was released.

That required Barr to produce his controversial 4-page summary of Mueller’s findings, which Barr published just two days after Mueller submitted his report, and which also contained Barr’s conclusions about the obstruction question that Mueller and his team had refused to answer.

Barr was careful to include direct quotes from Mueller’s report in his summary whenever possible, including Mueller’s sly insinuation that if his team could have exonerated Trump from guilt due to obstruction, it would have said so. But Barr’s summary also clearly told the public that there never was a Trump-Russia conspiracy, and that, in his and Assistant AG Rosenstein’s opinions, the evidence against Trump in the Mueller report would not have met current Justice Department criteria for a criminal indictment for obstruction.

As opposed to the cleverly convoluted language used by Mueller in his report to disguise his political bias, Barr’s conclusions were clear and easy for the public to understand: The definitive verdict was in. The Trump-Russia conspiracy scandal had always been a hoax, and Trump had fired Jim Comey and publicly criticized Mueller because of his understandable frustration as an innocent man being wrongly accused of crimes he didn’t commit.

THE FACTS WITHOUT THE SPIN

The publication of Barr’s summary of the Mueller report’s conclusions, and the attorney general’s interpretation of them, let almost all of the air out of Mueller’s public relations balloon. The summary provided all the information that most Americans wanted to know. Few would bother to read the 400 pages of details and carefully crafted legal verbiage in Mueller’s report, when it was published a few weeks later, or pay much attention to Democrats who attacked Barr’s summary as an attempt to whitewash President Trump’s crimes.

A few days after Barr’s summary was published, Mueller signed a letter that was immediately leaked to the media. It complained that the summary misled the American people about the true meaning of the Mueller report. When Barr called Mueller on the telephone to talk about his criticisms, Mueller admitted that Barr’s summary had accurately represented his report’s basic findings, but without Mueller’s desired spin.

McCarthy notes that while Barr’s clever decision to seize control of the media narrative by getting his own interpretation of Mueller’s findings to the American people first, Mueller’s team was still able to achieve several of its other goals, including: “Make sure the report was disclosed to Congress intact, with 200 pages of obstruction evidence, a legal analysis that tends toward a finding of obstruction, and an express assertion by the special counsel that if he had found Trump did not commit a crime, he would have said so.”

For added measure, Mueller made a rare appearance last week at a Department of Justice news conference at which he announced the formal closure of his investigation. He reiterated, almost word for word, some of the findings of his report, issued a thinly disguised plea for a congressional impeachment proceeding, and begged the public and Congress not to ask him any more questions about it or to testify further.

In the end, Democrats were frustrated by Mueller’s stubborn refusal to drop his false facade of political neutrality by openly accusing Trump of impeachable conduct.

Barr responded to Mueller’s press conference by agreeing to an extended broadcast interview with legal reporter Jan Crawford from CBS News. By choosing CBS, Barr was trying to reach out to a much broader political audience than a similar interview would have attracted on Fox News, and gave his own candid appraisal of the way Mueller carried out his investigation.

BARR’S MESSAGE TO THE AMERICAN PEOPLE

Barr emphasized that the OLC guidelines, which do not permit indicting a sitting president, should not have stopped Mueller from carrying out his mandate to decide whether Trump had obstructed justice. Barr explained that when Mueller didn’t make a decision, “the Deputy Attorney General Rod Rosenstein and I felt it was necessary for us as the heads of the Department to reach that decision.”

Barr gently but firmly criticized the manner in which Mueller and his team carried out their investigation. He said that the powers of the Justice Department to investigate crimes should not be used as “an adjunct to Congress” to carry out an impeachment proceeding. Barr also criticized Mueller for saying in his report that he could not exonerate the president on the obstruction charge. Barr said that the president did not have to be exonerated, because “that is not the standard we use at the Department of Justice.” Barr was saying that President Trump, like every other American citizen, had the basic right to a presumption of innocence.

Barr did not accuse Mueller of trying to manipulate the public reaction to the report. But he did say that Mueller’s failure to address the obstruction issue and his failure to mark portions of the report that needed to be redacted made it necessary for the attorney general to produce his own brief summary to quickly satisfy the curiosity of the American public, including a clear answer on whether Trump was guilty of obstruction which Mueller had refused to provide.

Barr also provided an update and additional details on his new probe to resolve the unanswered questions and contradictions that surround the origins of the Trump-Russian investigation. He said that as the investigation being conducted by Justice Department Inspector General Michael Horowitz into the abuse of the FISA search warrant process, along with the involvement of U.S. Attorney John Huber, who had been assigned to the same case by then-Attorney General Jeff Sessions, is now wrapping up, Barr expects important new facts to emerge from the new investigation launched by U.S. Attorney John Durham, who has much broader legal authority than IG Horowiz, whose jurisdiction is limited to current employees of the Justice Department.

BARR ASKING QUESTIONS OTHERS WON’T

A Wall Street Journal editorial said that Barr “is taking flak because he’s asking questions that other won’t.” But in his CBS interview, Barr seemed to shrug off the media attacks on his reputation for impartiality, questioning whether he should have been trusted with presidential authority to review and declassify all levels of classified information. “I’m amused by these people who make a living by disclosing classified information, including the names of intelligence operatives, wringing their hands about whether I’m going to be responsible in protecting intelligence sources and methods,” Barr said.

“I’ve been in the business for over 50 years, long before they were born, and I know how to handle classified information, and I believe strongly in protecting intelligence sources and methods. But at the same time, if there is information that can be shared with the American people without jeopardizing intelligence sources and methods, that decision should be made, and because I will be involved in finding out what the story was, I think I’m in the best position to make that decision,” the attorney general said.

WHO IS PROTECTING OUR CIVIL LIBERTIES?

Barr recalled that when he first entered government service in the 1970s as an employee of the CIA, that agency was under a lot of scrutiny from Congress and the media over allegations that it had abused its power in the way it investigated civil rights and anti-Vietnam war groups. Barr said he finds it “stunning” that today’s mainstream media outlets “just seem to brush aside” the growing evidence that the CIA and other U.S. government agencies were doing the same kinds of things to Trump’s 2016 presidential campaign. “The media doesn’t seem to think that it’s worth looking into [when] they’re supposed to be the watchdogs of our civil liberties.”

Barr believes that the problem at these agencies was limited to “the activities undertaken by a small group. . . of executives at the senior level,” most of whom are no longer in government service.

The attorney general added, “I’m not suggesting that people did what they did necessarily because of conscious, nefarious motives. Sometimes people can convince themselves that what they’re doing is in the higher interest, the better good. They don’t realize that what they’re doing is really antithetical to the democratic system that we have. They start viewing themselves as the guardians of the people that are more informed and insensitive than everybody else. . .because they have a particular bias they don’t see. . .

“Government officials [can] get very arrogant. They identify the national interest with their own political preferences and they feel that anyone who has a different opinion is somehow an enemy of the state. . . [They have a] tendency [to think] that they know better and that. . . can easily translate into essentially supervening the will of the majority.”

The editorial warns Barr that those words “won’t win any popularity contests in Washington. . . but the public should be encouraged that he is looking closely at FBI actions that so many prefer to ignore.”

THE COST OF CANDID OPINIONS

Democrats have been angered by Barr’s candid opinions, but many others find his candid willingness to clearly label “this whole idea that the Trump was in cahoots with the Russians [as] bogus,” and his refusal to stop using the word “spying” to discuss the FBI surveillance on the 2016 campaign, to be refreshingly open and honest.

Barr noted, “It’s part of the craziness of the modern day that if a president uses a word [spying], then all of a sudden it becomes off bounds. It’s a perfectly good English word. I will continue to use it.”

Barr expressed no regrets about taking the job of Trump’s attorney general, despite the damage inflicted by Trump critics on the good reputation Barr built up during his long career.

“Well, in a way I expected it,” he said. “I realize we live in a crazy hyper-partisan period of time and I knew that it would only be a matter of time if I was behaving responsibly and calling them as I see them, that I would be attacked because nowadays people don’t care about the merits and the substance. They only care about who it helps, who benefits, whether my side benefits or the other side benefits. Everything is gauged by politics. . .

“Any attorney general in this period is going to end up losing a lot of political capital. I realize that, and that is one of the reasons that I ultimately was persuaded that I should take it on, because I think at my stage in life it really doesn’t make any difference.”