Below is my column in The Hill newspaper on the hearing with Attorney General Bill Barr in the Special Counsel investigation. Barr’s testimony reaffirmed many of the points of the column, including the fact that Robert Mueller was not told that he could not reach a conclusion of obstruction. Indeed, Barr testified that both he and Deputy Attorney General Rod Rosenstein told Mueller that he should reach a conclusion. As Mueller’s superiors, that should have resolved any question of a “policy” of Main Justice. However, according to Barr, Mueller not only did not reach a conclusion but he also disregarded the express request that his staff identify grand jury information to allow for a rapid release of a redacted report.
Notably, Barr also confirmed that just eight percent of the public report was redacted — largely to remove material that could undermine ongoing investigations. The sealed version of the report given to Congress only had two percent redacted. Thus, while the Democratic leadership is insisting holding back impeachment efforts until they can get “the full report,” they already have 98 percent of the report and the remaining grand jury information might ultimately not be released by a federal court. Nevertheless, as predicted in the column, the focus of Congress remains on the four-page summary that preceded the full 408-page report. It is a telling emphasis that highlights what I have previously discussed as the priority of congressional leaders.
Here is the column:
This week’s congressional hearings with Attorney General William Barr are likely to follow Carl Sandberg’s rule: “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell.”
Last night, news broke of special counsel Robert Mueller’s letter to Barr, objecting to the four-page summary that Barr gave Congress before releasing Mueller’s report. That news led to the familiar vapors of legal experts who suggested Barr might be impeached and accused him of lying to the public. In anticipation of the heated questioning in Congress, here is a Sandburg-like guide to the issues.
Arguing the facts
Many pundits and politicians in Washington seem far more eager to discuss Barr’s four-page summary than the actual 400-page report. It is a telling emphasis since, whatever the summary’s shortcomings, the public now has the report itself. It is like movie critics focusing on the one-minute “Avengers” trailer rather than the three-hour movie.
Barr released the report with limited redactions. The problem for critics is that the report does not support two years of predictions of criminal charges against President Trump and his family. In writing his summary, Barr offered to allow Mueller to review the draft. Mueller declined. The regulations stipulate that, after the submission of a confidential special counsel report, the attorney general will issue “brief notifications, with an outline of the actions and the reasons for them.”
Barr did that. He stated correctly that Mueller did not find evidence of crimes connected to collusion or conspiracy with the Russians and that Mueller did not reach a conclusion on obstruction. He then explained that he and Deputy Attorney General Rod Rosenstein concluded that the evidence would not support a charge of obstruction.
Barr then added a line from the report that remains most damaging to Trump, which is that Mueller did not exonerate Trump. The Justice Department issued a statement following Tuesday’s leak that Mueller wrote a one-page letter, calling for the release of the report’s longer executive summary. The Justice Department stressed that the “special counsel emphasized that nothing in the attorney general’s March 24 letter was inaccurate or misleading.” Yet, Mueller is quoted as stating that Barr’s summary “did not fully capture the context, nature, and substance of this office’s work and conclusions.” Mueller wanted to release the summary section of the report.Barr reportedly called Mueller to explain that he preferred not to release the report piecemeal and that the specific portion raised by Mueller had not been cleared by reviewers for release.
Barr can be legitimately criticized for his press conference. He briefly described Trump’s noncriminal motivations and mindset in a way that raised valid concerns. Those three lines smacked of advocacy and tainted the rest of a largely descriptive press conference. However, his four-page summary was not misleading on the report’s conclusions, and his press conference was followed by releasing the report itself.
More importantly, despite predictions that Barr might delay the report’s release, redact embarrassing material or make unexplained redactions, Barr’s record is commendable. He released a summary within two days of the report’s completion. He then released the report within a few weeks. He released highly damaging information on Trump. Finally, he not only minimized redactions but clearly identified the reason for each.
Arguing the law
Faced with bad facts, many have argued the law, claiming that Barr’s narrow view of obstruction dictated Mueller’s results, or the Justice Department policy of not indicting a sitting president was the reason no obstruction was found. Both happen to be wrong on the law.
As Barr clearly stated during his press conference, any differences over the scope of obstruction were immaterial because all of the officials agreed there must be a showing of a “corrupt intent.” Mueller found a variety of noncriminal motives that would offer ample defenses to obstruction. That does not mean such acts could not be grounds for impeachment, but it would make for an anemic obstruction prosecution.
Mueller’s report largely defuses the key events cited for two years as clear acts of criminal obstruction. It describes the Trump Tower meeting in strikingly noncriminal terms. Likewise, Trump’s firing of former FBI Director James Comey seems more obsessive than obstructive in the report. Even the alleged order to fire Mueller, described in the report, focused on Trump’s view of Mueller as having conflicts of interest. It did not say that Trump ordered an end to the investigation or barred the appointment of a new special counsel.
Finally, Rosenstein, who Democrats have defended, agreed there was insufficient evidence to support obstruction, given the noncriminal motives described by Mueller. The second claim is that Mueller was barred from finding obstruction because of the long standing, and in my view fundamentally flawed, Justice Department policy against indicting sitting presidents. Mueller does not claim in his report that he was told he could not reach a conclusion on obstruction. Indeed, Barr and Rosenstein did not feel legally constrained in reaching such a conclusion.
What is absolutely clear is that nothing in Justice Department policies would bar a special counsel from finding evidence of criminal conduct. It is absurd to suggest that a policy against indicting a president means you cannot report evidence of a crime. It also fundamentally changes the role of the special counsel to a mere collector of evidence with no analytical function. Absent an order to the contrary, the failure to reach a conclusion on obstruction was a failure of Mueller rather than Barr.
Pounding the table
With bad facts and bad law, that leaves pounding the table and yelling like hell. Despite the report being publicly available, and Congress has copies without many of the redactions, the focus will continue to be on whether an initial summary was accurate. Various pundits have declared that Mueller said Barr “lied” and that his summary was false or misleading.
Without waiting to hear from Mueller or Barr, Democratic Representatives Maxine Waters of California and Joaquin Castro of Texas called for Barr to be impeached over a four-page summary that preceded the report’s release a few weeks later. Impeaching someone for not adding more context to a summary, or adding three ill-considered lines to a press conference, is hardly equivalent to a high crime and misdemeanor.
The report released by Barr contained hundreds of pages of highly damaging information against Trump. Some of that information could support an impeachment inquiry, yet lawmakers now seem more inclined to focus on impeaching Barr. That may reflect the fact that Mueller’s report is full of evidence supporting noncriminal motives that would make for ready defenses against charge of obstruction. That is why we are likely to see desk pounding over a four-page summary, or three lines in a press conference, rather than the 400-page report itself in the coming hearings.
As for Barr, his record on the report was tarnished by his rhetoric. He would do well to remember another Sandburg caution: “Be careful with your words, once they are said, they can only be forgiven, not forgotten.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified at the Senate confirmation hearing of Attorney General William Barr. Follow him on Twitter @JonathanTurley.