One of the big takeaways from the first day of the testimony of Bill Barr concerns a number of failures that may be attributed to Special Counsel Robert Mueller. The most significant failure concerns his decision not to reach a conclusion on obstruction, as I discussed in today’s column. With an hour of the release of the Report, I criticized Mueller for his decision not to reach a conclusion which has no basis in law or policy. The only question was whether Mueller had been told not to reach such a conclusion. Barr answered that questions today in no uncertain terms. Not only could Mueller reach a conclusion, both Barr and Rosenstein pressed him to do so. Mueller’s decision remains both unsupported and incomprehensible. And that is not all that Mueller will have to explain.
Barr understandably said today that he still does not understand Mueller’s rationale for not reaching a decision and questioned what Mueller thought he was supposed to do as a special counsel. What is weird is that Barr and Rosenstein made clear that they did believe Mueller could and should reach a decision. That should have resolved any question as to DOJ policy.
Another glaring revelation from Barr was that he and Rosenstein expressly and repeatedly told Mueller to identify grand jury or Rule 6(e) material in his report to allow a rapid public release of the report. Barr said that he was surprised when Mueller simply ignored that request from his superiors. The result was a longer period for the public release of the report.
A third disclosure was that Mueller spoke to Barr and expressly said that he did not view the summary letter to be misleading or false. That is categorically in conflict with the media coverage over the last 24 hours claiming that Mueller believed Barr “lied” or “misled: the public. Barr said that Mueller stated clearly that he wanted the executive summaries released to help explain why he did not reach a conclusion.
Finally, Barr said that Mueller repeatedly told him and Rosenstein that his decision not to reach a conclusion on obstruction was not due to the Office of Legal Counsel memos barring the indictment of a sitting president. That is also in direct contradiction with ongoing coverage and runs contrary to the discussion of the OLC by the Special Counsel in his report. It also makes senses because, as I have written, there is nothing in those memos that even remotely suggests that a Special Counsel cannot reach a conclusion on criminal conduct.
If true, Barr is clearly more sinned against than sinner in all of this. Regardless, we have to hear from Mueller and he has much ‘splaining to do.