The Barr Summary of the Mueller Report

March 27, 2019

Over the weekend, Attorney General William Barr issued his four page interpretation and summary of the Robert Mueller. Until the Mueller Report comes out, here are some tentative comments and questions that come to mind

A few preliminary words.

1. It is the ruling of the Justice Department that a sitting president cannot be indicted. Therefore, if Mueller found incriminating evidence against Trump himself, he would need to lay out the evidence so that Congress could evaluate it to see if it rose to the level of impeachment due to “high crimes and misdemeanors”. That is why it is so important for the entire Mueller Report be made public.
2. Mueller can indict others and he did so regarding more than 30 other people, both U.S. citizens and Russians. But in these cases, he needed to have evidence beyond reasonable doubt that the person was guilty, that it would be convincing enough to obtain a unanimous decision of a 12 person jury and that it could stand up to a legal appeal.

Barr Summary – We need to remember that we have not yet seen the Mueller report (except for a few small quotes). Whereas Mueller was somewhat ¨independent¨, Barr is Trump’s handpicked Attorney General. Although I have deep respect for Mueller and will generally accept his conclusions (upon seeing his evidence), I have serious questions regarding Barr for the following reasons.

1. Barr stated that he would consult with Rosenstein and Mueller before going public with his summary in order to make sure that his summary was an accurate summation of the Mueller Report. He did NOT consult with Mueller as he promised. In my mind this raises some doubts about his honesty.
2. Before becoming Attorney General, William Barr wrote a 19 page paper and sent it (unsolicited) to the Trump administration. He stated his criticism of the Mueller investigation and his belief that a president, by definition, could not be guilty of obstruction of justice. He had previously written extensively about his expansive view of presidential authority. It is likely that Trump chose Barr due to those beliefs. In less than two days, Barr reached a decision claiming there was no obstruction of justice. This went way beyond Mueller’s conclusions and which took Mueller almost two years to sift through (see below). I am somewhat skeptical that a fair decision could have been made in such a hasty way. It seems that Barr’s previously held beliefs and biases had already shaped his decision.

There were three main areas analyzed by the Mueller investigation according to the Barr summary: allegations regarding conspiracy and collusion, allegations regarding the obstruction of justice, and Russian interference in our elections.

Conspiracy/Collusion

                According to what we do know about the Mueller Report, it could not establish beyond a reasonable doubt that the Trump campaign committed conspiracy and cooperation with the Russian government. The Report did affirm that the Russian government made overtures to the Trump campaign. Although Trump and his staff did commit questionable actions, Mueller did not believe that these actions rose to the level of criminality.

                There is a huge difference between the two possible explanations behind the Report’s findings.

1. There was no evidence of collusion at all; or
2. There was some evidence of collusion, but it did not rise to the level of establishing beyond a reasonable doubt that criminal actions (including intent) were committed.

Barr and Trump claim that the first interpretation is an accurate summary of Mueller’s Report. Until I see the Report and its evidence, I am not convinced. If Mueller did, in fact, reach the first option, it would be surprising to me. Everyone admits that the following events took place and that they give the appearance of collusion. I would like to see the Mueller Report to understand how these factual events were handled.

1. At the New York Trump Tower meeting (June 9, 2016), Donald Trump, Jr., Jared Kushner, and Paul Manafort met with Russians in order to get dirt on Hillary Clinton.  Donald Jr. made many misleading statements about this meeting. President Trump himself dictated a response and claimed it was a meeting about the adoption of orphans. This misleading statement raises suspicions of both collusion as well as obstruction of justice.
2. At campaign rallies, Trump exclaimed, “Russia, if you’re listening, I hope you’re able to find those 30,000 emails that are missing” referring to Hillary’s emails. Although this was said in Trump’s boisterous, almost joking, manner, the content is actually an invitation for Russia to hack into a rival candidate’s email system, which is illegal.
3. Mueller’s commission affirmed that Paul Manafort, Trump’s former campaign chairman, shared polling data on the 2016 elections with Konstantin Kilimnik, a Russian linked to Russia’s intelligence agencies. In my opinion, this is a clear example of collusion. I want to see how Mueller interprets it.
4. Before Trump took office, his National Security Advisor designate, General Michael Flynn met secretly and illegally with Russian Ambassador Sergey Kislyak to talk about the lifting of sanctions that Obama placed upon Russia. Flynn then lied about this meeting to Vice-President Pence who unknowingly repeated this lie to the public. Flynn was then fired for his misdeeds. There are many more examples, but these four are sufficient for now. The release of the Mueller Report is necessary to clear up these events.

Obstruction of Justice

                This is the biggest problem with the Barr Summary. It appears that Mueller laid out the arguments for and against the allegation that Trump obstructed the process of justice. Here are some actions that

1. President Trump fired Comey as the Director of the FBI. He gave many reasons for the firing including the appeal to “this Russia thing with Trump”. This seems an obvious obstruction.
2. On over a hundred occasions, Trump publicly criticized his first Attorney General, Jeff Sessions, for recusing himself from overseeing the Mueller investigation. It is obvious that he wanted Sessions to guide the investigation in such a way that the president would be found not guilty. This raises a serious question about the appropriate role of an Attorney General. Is the Attorney General the personal lawyer of the president whose main goal is to defend the president? (This is obviously Trump’s understanding); OR is the Attorney General the highest-ranking officer in the land to defend the Constitution and the rule of law? The AG’s role is to advise the president to stay on the straight and narrow, not to defend a president if he violates the Constitution or rule of law.
3. When the Mueller team requested an interview with Trump, the president’s lawyers did everything possible to avoid such an interview. They only agreed that the president would provide answers to written questions and the lawyers reviewed those answers before they were submitted. Given that previous presidents have willingly been interviewed by special investigators, Trump’s refusal to agree to an oral interview raises doubts in my mind about his honesty.
4. Barr mentioned that there was additional evidence regarding obstruction of justice that has not been made available to the public. It is important for the public to see this information.

After laying out the evidence in favor and against the alleged obstruction of justice, Mueller decided not to make a decision. His report ¨does not conclude Trump committed a crime, it also does not exonerate him¨. It would be important to know why Mueller chose not to make a decision.  Since it was legally impossible for him to indict a president, it is likely that he recognized that it was the duty of Congress to make a decision about possible impeachment. This is what happened in the special counsel reports in the past regarding Presidents Nixon and Clinton.

Nevertheless, Attorney General Barr made a questionable maneuver. Over the weekend and in consultation with Rosenstein, Barr decided the evidence was not sufficient to pursue the alleged obstruction of justice by Trump. Whereas Mueller, after two years of investigation, laid out the arguments side by side, Barr exonerated Trump. The fact that Barr was appointed by Trump and reports back to Trump, and that any decision regarding possible criminality (impeachment) should be made by Congress and not by the Attorney General. Barr’s “decision” is a questionable attempt to spin and shape the “first impression” presented to the public, even if it distorts the Mueller Report’s evidence.

The President’s tweets and comments to reporters have repeated over and over again that the Mueller report granted him “Complete and total EXONERATION!” (Trump’s emphasis), This is misleading, because the Mueller Report stated that regarding obstruction, the Report “does not conclude Trump committed a crime, IT ALSO DOES NOT EXONERATE HIM¨ (my emphasis). Given that many will take Trump’s tweet as gospel truth, I believe that all people of good will (both critics and supporters of Trump) should call out the President on this misleading and dishonest affirmation.

Trump´s lawyer Rudy Giuliani asserted that there can be no obstruction of justice if there is no underlying crime. Giuliani is mistaken here. For example, Martha Stewart was convicted of obstruction of justice even though there was no underlying crime.

Russian Interference in our Elections

                Although Barr’s comments regarding conspiracy and obstruction of justice have grabbed the headlines these last three days, we should not forget that the Mueller commission found numerous examples of Russian interference in our elections. Russia has been a rival of the U.S. for over 70 years. Although we should strive for good relations with all countries, including our rivals, we cannot overlook dictatorial practices of any country. I believe (and the Mueller Report will probably also show) that Putin is directly behind this interference.

                At the summit meeting between Putin and Trump in Helsinki, they held a joint press conference. A question was raised regarding Russian interference in our elections. The questioner affirmed that every one of our intelligence agencies agreed that Russia had interfered. Trump responded ¨I have great confidence in my intelligence people, but I will tell you that President Putin was extremely strong and powerful in his denial today¨. In effect, Trump threw his own intelligence community under the bus. I am deeply concerned that Trump takes the word of Putin over the evidence gathered by our intelligence community and the Mueller team. Republican leaders, like Lindsay Graham, have repeatedly tried to convince the President about the Russian threat and over the weekend Graham said that he thinks Trump finally understood about Russian interference.

                We should not “cherry pick” the Report and only accept the parts that we like. It is important that Trump go on record and acknowledge Russia’s interference, and also state what he plans to do to combat it in the future.

Given the many lingering doubts raised by the Barr Summary, the Mueller Report should be made public. Only then will the American people be able to draw well informed conclusions.