Attorney General Barr’s Summary and the Need to Publish the Mueller Report

Attorney General Barr crafted a fairly, though fairly subtle, partisan summary of Special Counsel Robert Mueller’s report. You can read the text here or here. My hot take on Barr’s hot take is this: It deliberately omits the massive findings and successes of the Mueller investigation, highlights the clearance on a Trump Campaign and Russian government conspiracy, and discusses the obstruction section in a deliberately obfuscatory way. Barr came to his conclusions in a relatively quick way that seems to impugn the credibility of the analysis he offered the Senators. Forty eight hours is a pretty short time to issue conclusive statements and prosecutorial decisions given a report that details twenty two months of deep investigation. AG Barr’s summary cannot be the end of the story, and it shouldn’t be his decision on whether or not congress gets to see the report.

Analyzing Barr’s Summary
From the letter:

The Attorney General
Washington, D.C.
March 24, 2019

• The Honorable Lindsey Graham

• Chairman, Committee on the Judiciary

• United States Senate

• 290 Russell Senate Office Building

• Washington, D.C. 20510

• The Honorable Jerrold Nadler

• Chairman, Committee on the Judiciary

• United States House of Representatives

• 2132 Rayburn House Office Building

• Washington, D.C. 20515

• The Honorable Dianne Feinstein

• Ranking Member, Committee on the Judiciary

• United States Senate

• 331 Hart Senate Office Building

• Washington, D.C. 20510

• The Honorable Doug Collins

• Ranking Member, Committee on the Judiciary

• United States House of Representatives

• 1504 Longworth House Office Building

• Washington, D.C. 20515

Dear Chairman Graham, Chairman Nadler, Ranking Member Feinstein, and Ranking Member Collins:
As a supplement to the notification provided on Friday, March 22, 2019, I am writing today to advise you of the principal conclusions reached by Special Counsel Robert S. Mueller III and to inform you about the status of my initial review of the report he has prepared.

All pretty boilerplate and reasonable, though, any honest observer of Senator Lindsey Graham over the past two years will question the honorific “Honorable.” That will seem like a partisan sneer, but I don’t think it is, given how many centrist Republicans have also lost respect for Graham. Minor quibble and the language is unavoidable in any event.

Next section: This could be titled methods and means

"The Special Counsel's Report

On Friday, the Special Counsel submitted to me a "confidential report explaining the prosecution or declination decisions” he has reached, as required by 28 C.F.R. $ 600.8(c). This report is entitled “Report on the Investigation into Russian Interference in the 2016 Presidential Election.” Although my review is ongoing, I believe that it is in the public interest to describe the report and to summarize the principal conclusions reached by the Special Counsel and the results of his investigation.
The report explains that the Special Counsel and his staff thoroughly investigated allegations that members of the presidential campaign of Donald J. Trump, and others associated with it, conspired with the Russian government in its efforts to interfere in the 2016 U.S. presidential election, or sought to obstruct the related federal investigations. In the report, the Special Counsel noted that, in completing his investigation, he employed 19 lawyers who were assisted by a team of approximately 40 FBI agents, intelligence analysts, forensic accountants, and other professional staff. The Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.

The Special Counsel obtained a number of indictments and convictions of individuals and entities in connection with his investigation, all of which have been publicly disclosed. During the course of his investigation, the Special Counsel also referred several matters to other offices for further action. The report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public. Below, I summarize the principal conclusions set out in the Special Counsel's report.

This is a tricky bit of writing. Barr states his review is on-going, but that in the interest of the public confidence he will tell the Senators his conclusions. There is no way that doesn’t seem like a rush to judgement. The summary only gets trickier from there. Barr highlights the number of subpoenas, the number of investigators, the types of investigators, number of interviews etc but then declined to also summarize the number of indictments and guilty findings because these latter details have already been made public (by, one assumes good reporting by the media). However a lot of the investigative details were also already public knowledge. This has the appearance of softening the report while also not making partisan senators uncomfortable with successes of the Mueller probe. Many of them have refused to accept that Mueller and his team have been good investigators and uncovered quite a lot. Forcing them, along with the American public to look at the number of Trump’s close associates  to have been found or pleaded guilty to criminal charges doesn’t seem like its an important point for Barr. The AG also knows this letter will be made public and it seems as if he is avoiding legitimizing the reporting of Mueller’s successes, including close associates of the President of the United States.

Barr Describes the Organization of Mueller’s Report

"Russian Interference in the 2016 U.S. Presidential Election.

The Special Counsel's report is divided into two parts. The first describes the results of the Special Counsel's investigation into Russia's interference in the 2016 U.S. presidential election. The report outlines the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts. The report further explains that a primary consideration for the Special Counsel's investigation was whether any Americans – including individuals associated with the Trump campaign – joined the Russian conspiracies to influence the election, which would be a federal crime. The Special Counsel's investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election. As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”¹

The Special Counsel's investigation determined that there were two main Russian efforts to influence the 2016 election. The first involved attempts by a Russian organization, the Internet Research Agency (IRA), to conduct disinformation and social media operations in the United States designed to sow social discord, eventually with the aim of interfering with the election. As noted above, the Special Counsel did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated with the IRA in its efforts, although the Special Counsel brought criminal charges against a number of Russian nationals and entities in connection with these activities.

The second element involved the Russian government's efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

I’ve highlighted the last part because I think it is a key elision in Barr’s analysis. I think until proven otherwise we have to accept the findings of Mueller’s report. By all accounts he is a committed professional, ethical guy.  Full disclosure? I think he is a kind of American hero. That isn’t to say he is perfect, or without flaw. However he seems, by all accounts to do the right thing. He ran a tight, and tight-lipped ship. Enter AG Barr. By denying people the ability to see the whole of the Mueller report Barr can highlight the lack of evidence of crime, but he denies us the ability to see what Mueller’s conclusions were about activities that didn’t rise to the level of criminal culpability but would have to be considered deeply unethical. Barr is focusing eyes on the the lack of coordination between Trump et al and the Russian government to win a US election (which would be criminal), but this glosses over the efforts by Trump allies, and perhaps Trump himself, to work with Russian oligarchs and other Russian citizens and murky assets.  This also doesn’t address the fact that such people as Russian oligarchs exist largely at the whim of Putin. Among the Russian elite, it is very hard to know where the government ends and private citizenry begins. 

We do know that Trump himself encouraged Russian attacks on his political opponents. 

"I will tell you this, Russia: If you’re listening, I hope you’re able to find the 30,000 emails that are missing,” the Republican nominee said at a news conference in Florida. “I think you will probably be rewarded mightily by our press.”

-Trump at a press conference on his campaign trail. 

That may not be coordinated conspiracy but it does rise to the level of deeply immoral action in a US political election. If you are a Trump supporter and feel inclined to give him a pass here, ask yourself how you would feel if Hillary had asked China, or Britain to hack or steal Trump emails. After he asked this it appeared that Russians were listening, because they almost immediately started attacking and targeting Clinton. 

For a longer analysis of the episode above go here, and here.

The Don Jr Trump Tower Meeting. 

Mueller didn’t indict on this or find that it met the criteria for coordinating with the Russian government. I’d like to read the report to know what the rational was for this, as I’m sure the Mueller team looked into it. Its a complicated story, but even if doesn’t  rise to the level of criminal conspiracy, it again, impugns, mightily, the character of every single person involved. 

What we know is that it was a meeting intended to profit on alleged Russian knowledge of Hillary Clinton that would have been damaging to her. A brief summary of the events is in order.

My brief summary. 

A British music publicist emails Don Jr that a Russian pop star wants to arrange a meeting with Trump and some big Russian influencers to dish on some official Russian documents that would look bad for Hillary. British Pop music guy says that this stuff came from a meeting between Russian Pop Stars pop, and someone he called the Crown Prosecutor of Russia. British Pop guy also claims that this is part of Russia’s support for Trump.

 In the email exchanges that led to the now infamous Trump Tower meeting, Don Jr says, “If its what you say, I love it especially later this summer.” This all happens on June 3 2016. 

On June 6, 2016 Don Jr and British pop guy arrange talks. Trump calls and is called by Russian pop star. After his calls with Russian pop star, several calls ensue from Don Jr. A long one to an unknown blocked number. We don’t know who this blocked number was and Don Jr rather lamely claims to not know who it belongs to. There is some credible speculation that the blocked number is Donald Trump’s number, and that Don Jr and Don Sr were discussing the particulars of the meeting.

June 7 2016, Don and Goldstone (British pop music guy) confirm meeting. They will meet on June 9. Don Jr says, he will probably be with Manafort, Don Jr brother and of course Don Jr.
At the same time Donald claims he will be making major speech about what he has on the Clintons. While not conclusive, it does lend support to the Cohen testimony that Trump Sr was in the loop, and was anticipating a pot of Russian gold.  Given that the meeting didn’t actually produce much and Trump never gave that Monday take down, the worst interpretation of the Trump Tower meeting seems at least credible. Trump knew about the upcoming meeting, and was anticipating damaging content to deliver to the press.

The meeting gets pushed back, and Manafort and Kushner are getting forwards of the email exchanges with Goldstone. This is now more people close to Trump in the loop.  This increases, not decreases the likelihood that Trump Sr himself was also in the loop. It strains any semblance of verisimilitude. It seems unlikely in the extreme that all the people who knew about it were extremely close to Trump and that none of them discussed the meeting with Trump Sr. It could have happened that way. But given Trump Sr’s tendency to badly micromanage everything, that doesn’t seem very probable. Trump is in the building for three hours before the meeting, and no one mentioned to him that there was going to a major meeting with Russians to get Kompromat on Hillary?

The meeting fails to produce dirt on Hillary as the Russians mostly wanted to complain about sanctions and the Magnitsky Act. Does any of this rise to the level of criminality? But given that the press had to shame Trump et al into being somewhat honest (ironically, the press had the emails) about the whole event doesn’t bode well for a high ethical bar being crossed by the Trump campaign team. From a legal layperson’s perspective (mine) it all looks like an attempt to coordinate with the Russian government to attack a political opponent.

There is more we could say on this meeting, but Barr prevents anyone from having to deal honestly with what is at least an ethical breach by focusing on Mueller’s finding of no conspiracy with the Russian Government. 
Analysis of the decision to not indict anyone for the Trump Tower Meeting.
The Wikipedia Entry on the Trump Tower Meeting

It looks like AG Barr has spared or is trying to spare the Republican Party a broader reckoning with the full picture, denying Congress, the body that must decide what to do with Presidential malfeasance that same full picture, as well as denying the American public its own oversight privilege.

Barr almost praises Mueller for the work the Special Counsel did on uncovering and describing the vast Russian effort to influence the US 2016 presidential election. This is a bombshell that Trump supporters, President Trump chief among them, refuse to acknowledge.  Trump and his allies have been denying the US Intelligence and Federal Law Enforcement consensus that Russia intervened in a major and concerted way to upset US democracy (as it done to democracy across the world) almost since Trump’s election. The Special Counsel investigation has exposed those lies, deceptions and spin efforts.  Trump was either wrong or lying about Russia attacking the US elections. Given that he gets briefings and has had intelligence people telling him since before he was elected Russia was officially trying to help him, we can only assume he was lying. This finding by Mueller is was the central pillar of his investigators mandate, and with his report, he corroborated almost all of the reporting on Russian influence attacks. This makes a sham of the terms “witch hunts,” and “fake news.”

Below I’ve highlighted some key points in bold in AG Barr’s summary of obstruction.

"Obstruction of Justice.

The report's second part addresses a number of actions by the President – most of which have been the subject of public reporting – that the Special Counsel investigated as potentially raising obstruction-of-justice concerns. After making a “thorough factual investigation” into these matters, the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment. The Special Counsel therefore did not draw a conclusion - one way or the other – as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the President's actions and intent could be viewed as obstruction. The Special Counsel states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

The Special Counsel's decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime. Over the course of the investigation, the Special Counsel's office engaged in discussions with certain Department officials regarding many of the legal and factual matters at issue in the Special Counsel's obstruction investigation. After reviewing the Special Counsel's final report on these issues; consulting with Department officials, including the Office of Legal Counsel; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.²

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference," and that, while not determinative, the absence of such evidence bears upon the President's intent with respect to obstruction. Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding. In cataloguing the President's actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent, each of which, under the Department's principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.

Status of the Department’s Review

The relevant regulations contemplate that the Special Counsel's report will be a “confidential report to the Attorney General. See Office of Special Counsel, 64 Fed. Reg. 37,038,

² See A Sitting President's Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222 (2000).”

Again the AG crafts a carefully worded summary that fails to summarize the President’s action, by referring to the reporting on those actions. This is sort of funny in the sad way so much of American politics is funny these days. To cite the public reporting is to credit it as anything but “fake news.”  AG Barr must know full and well that the partisan Republicans he is addressing will not bother to look at those well reported actions by the president. We know that Manafort and Stone have been charged with obstruction and witness tampering. How likely is it that Trump is unlike his peer associates. Perhaps that is an unfair question. 

AG Barr is almost certainly correct that obstruction is a hard charge to prove because you must be able to establish the intent of the charged. Mueller left the question open, without recommendation, which may have been a mistake. Many legal scholars seem to think he wanted the decision to pursue that question left to Congress, whom he thought would read the full report. Barr has an extraordinarily narrow view of of obstruction of justice and extraordinarily broad view of Presidential power.

Barr steps in it though, by electing to exonerate the president himself, despite the fact that even he admits that the Mueller report “fails to exonerate” the President of obstruction of justice. He makes the claim, sure to be challenged, that since the Special Counsel did not make a recommendation on whether a crime had occurred, it fell to him to make that determination. It seems unlikely that this is the case, given that crimes can only be established in a court of law and are not declared by Attorney Generals, or Prosecutors. 

Even if he was correct it seems AG Barr is the last person who should be making an adjudication on whether obstruction occurred given his well publicized hostility to the Mueller investigation and his commitment to the position that a President cannot be guilty of obstruction. This legal commitment makes Barr singularly unfit to render a decision to recommend or fail to recommend prosecution regarding obstruction. Mueller apparently laid out evidence for and against the case for obstruction. What was that case? We don’t know, and neither Barr, nor Trump or his allies want to us to know. 

The only path forward, I think is to release the Mueller Report, not only to Congress but also to the American People. Congress voted almost unanimously to release the report. In the senate, one of the most partisan Republican Senators, The “Honorable” Lindsay Graham doesn’t want it released, and clearly doesn’t want Congress to exercise its co-equal oversight powers. He is joined by many other hyper partisan Republicans. That smells as bad it looks. Transparency would give was all a chance to adjudicate on the actions of our representatives while allowing constitutional processes of checks and balances to move forward.

Release the Mueller Report.