One way to understand what special counsel Robert Mueller’s report means is to compare it with what Attorney General William Barr said about it. Barr spun the report, first in his four-page letter last month after the report was delivered, and then in Thursday’s press conference. His words mirrored what the president’s allies have been saying since this investigation started. Why does Barr’s spin matter? While local US attorneys have considerable autonomy, Barr can influence the pending federal criminal investigations arising out of the Mueller investigation, 10 of which were referred to in this report. If Barr is biased, essentially acting more as Trump’s lawyer than the people’s lawyer, those investigations could be at risk.
Barr used the language of the Trump campaign, that the Mueller report established that there was “no collusion,” just as he talked about the FBI’s “spying” during recent House hearings. His account was selective at best, and false at worse. Mueller’s bottom line, which Barr quoted, was that “the investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
But there were links between the Trump campaign and individuals tied to the Russians. There were Russian offers of assistance; the campaign was sometimes receptive and sometimes not. The Mueller report said that Russia believed it would benefit from a Trump presidency and, in turn, “that the campaign expected it would benefit electorally” from the stolen Russian information. The campaign, it seems, was just clueless about the implications of foreign interference; Donald Trump Jr., for instance, didn’t see the slightest problem when he received an e-mail from a Russian operative before the Trump Tower meeting (shades of Hillary Clinton’s “gross negligence” in dealing with her e-mails).
As Mueller noted, the crime of conspiracy requires more than just taking parallel actions “informed by” or “responsive to” Russia’s acts; there must be an agreement and coordination. Still, Mueller took pains to explain the limitations of his conclusions: In the report’s introduction, where no one could miss it, he said that just because the investigation did not “establish” certain facts does not mean that there is “no evidence of those facts.” He recounted the way his investigation was hampered by lying witnesses, e-mails that could not be decrypted, and complex legal issues. He would not rule out the possibility that currently “unavailable information” could shed new light on his conclusions.
None of the subtleties in Mueller’s report were in Barr’s retelling. Just “no collusion,” he said, and the Trump campaign thunderously agreed.
Most troubling was what Barr did to Mueller’s findings on obstruction of justice. The Mueller report details 10 episodes in which Trump attempted to interfere with the Department of Justice investigation. Sounding like a defense lawyer in a closing argument, Barr insists on the president’s innocent intent — fueled by Trump’s “sincere belief that that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” If that is enough to exonerate a defendant, no obstruction prosecution would succeed. Everyone would shriek: “I obstructed justice because I really believed the investigation was improperly motivated and would hurt my business!” Worse, implicit in Barr’s spin is the idea that the president’s “sincere belief” was true — that the investigation was illegitimate — an inference belied by the report’s detailed account of Russian election interference and of Trump campaign-Russian contacts. Nor is it enough that Trump’s efforts to obstruct justice failed just because he couldn’t get any of his aides to go along with him. Endeavoring to obstruct justice is enough.
Worst of all was Barr’s conclusion — no obstruction of justice. That’s not what Mueller found. While Mueller believed he didn’t have enough evidence to find obstruction, he made it clear he would not exonerate Trump. His decision was colored by the context — he declined to make the traditional “prosecutorial” decision to bring or decline charges because this wasn’t a traditional case. Given the Justice Department’s Office of Legal Counsel policy against indicting a sitting president, “fairness concerns counseled against potentially reaching that judgment when no charges can be brought.” But if Mueller wouldn’t make that decision, he wasn’t inviting the AG to do so either; it was up to the “constitutional processes for addressing presidential misconduct,” namely, impeachment.
Concerns about fairness, or Congress’s constitutional oversight, let alone evidence — none of these stopped Barr. He would do what Mueller would not — exonerate the president. “No collusion, no obstruction!” the president crowed.
There are questions about what Congress will do next. But of greater concern are the US attorneys in those open federal criminal investigations if Barr tries to do to them what he did to Mueller.
Nancy Gertner, a retired federal judge, is a professor at Harvard Law School.