Attorney General Barr wrote a 4-page letter to 4 members of Congress on March 24, 2019. That letter has played a signal role in a contempt citation recommendation made by the House Judiciary Committee. Taking this letter by itself and without bringing in subsequent matters such as Mueller’s letter and executive privilege, I find upon close reading and re-reading of this letter that it’s completely harmless, innocuous, accurate and free from any hint of a basis upon which to issue a contempt citation.
The letter promises to advise of Mueller’s “principal conclusions”. It does that in its first section by quoting Mueller’s report, not by Barr himself offering his own opinion or summary or evaluations. How so? The letter first addresses “Russian Interference” using a quote written by the Mueller team: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” This quote is preceded by a sentence that says exactly the same thing, a sentence Barr penned: “The Special Counsel’s investigation did not find that the Trump campaign or any person associated with it conspired or coordinated with the Russian government in its efforts to influence the 2016 U.S. presidential election.”
There is no other content in this section of Barr’s letter that could possibly elicit a contempt citation, i.e., the section titled “Russian Interference in the 2016 U.S. Presidential Election”. Barr didn’t interpret Mueller or add his own comments in this section. He restricted himself to citing Mueller’s own summary statement. He gave the “bottom line” to Congress prior to sending them the report itself, which his team was redacting.
Barr offers no opinion on the facts of Russian interference.
The next section is titled “Obstruction of Justice”. Barr noted that Mueller’s report reached no conclusion on this matter. Barr quoted Mueller again: “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
Barr doesn’t offer an opinion of his own on the legal point of view reflected in using the word “exonerate”.
Barr next reports that he and Rod Rosenstein have studied the matter and reached a decision on obstruction of justice, this being Barr’s responsibility. He had to make this decision sooner or later. His decision is that there is not sufficient evidence to establish that the President committed the offense of obstruction of justice.
The only other main content of his letter informs about the status of making the full report known to Congress. Within a few weeks this process was completed and the report with some redactions made public.
Barr’s letter itself or by itself is no basis for many kinds of critical reactions that followed it that implied a cover-up. Members of Congress may, however, take issue over his decision that Trump didn’t obstruct justice. That decision did require judgment and evaluation. That debate is not a basis for a contempt citation either.
My reading of Barr’s letter differs from that of Judge Napolitano.
Napolitano writes “Barr authored a four-page summary of Mueller’s conclusions, which related that Mueller and his team of FBI agents and prosecutors could not establish the existence of a conspiracy between the Trump campaign and Russian agents for the campaign to receive something of value from the Russians. Barr offered the opinion that this conclusion exonerated Trump on the conspiracy…”
This is seriously inaccurate in two ways. The letter doesn’t use the word “exonerate” in the section on Russian Interference at all. It uses it only in the section on Obstruction of Justice. Barr didn’t offer the opinion that not being able to show the existence of a conspiracy exonerated Trump.
Second, in the section on Obstruction where the word “exonerate” does appear, Barr didn’t himself offer this as his opinion; he quoted Mueller as indicating a factual basis. In this section, this quote caps a paragraph that provides important context, which is that Mueller’s report provided evidence on both sides of the issue, but doesn’t make a recommendation to prosecute Trump. This Mueller posture is an input to the Barr and Rosenstein decision not to move forward with an obstruction of justice charge.
Judge Napolitano goes on to write “What’s going on here? It is clear that Barr’s four-page letter, about which Mueller complained to Barr and some of Mueller’s team complained to the media, was a foolish attempt to sanitize the Mueller report. It was misleading, disingenuous and deceptive. Also, because Barr knew that all or nearly all of the Mueller report would soon enter the public domain, it was dumb and insulting.”
I disagree with all of this. The letter was what it purported to be, a temporary summary for an object much in demand, while redactions could be made. There was no sanitizing going on other than the fact that an executive summary must necessarily be short. It was not deceptive in any way, shape or form. Barr accurately provided the key summary points and his own decision on obstruction of justice. What else could he have done? If he were silent for the next 3 weeks, the criticism and false narratives would have been even worse. He couldn’t start to release portions of the report. The wheels of reading and redacting take time.
Finally, the Judge writes
“Barr knows the DOJ is not in the business of exonerating the people it investigates. Yet he proclaimed in his letter that Trump had been exonerated.”
Barr didn’t proclaim at any point in his letter that “Trump had been exonerated”. He cited an ambivalent position of Mueller on obstruction in order to drive home that there was evidence on both sides of the obstruction question. It is in this context that Mueller’s statement occurs. These are Mueller’s words, not Barr’s: “while this report does not conclude that the President committed a crime, it also does not exonerate him.”
It’s true, as the Judge says, that Barr knows that the prosecution doesn’t exonerate people. Maybe he shouldn’t have deployed that quote, but maybe he had good reason to do so, which is to show Mueller’s misapprehension of his proper role.
9:07 am on May 9, 2019
