Published by The Lawfare Institute
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Consider the affirmative dismay with which lawyers are likely to view the actions of Attorney General Bill Barr. Even leaving aside the atmospherics of his recent performances (for example, the almost palpable disdain with which he treated the press at his press conference and the almost cloying way in which he defended Trump's actions as the product of "frustration and anger"), Barr's actions over the past month have left any reasonable observer with a number of questions about the quality of his legal performance.
To recall, Barr has gone on record twice in his handling of the release of the Mueller report—first in his letter to Congress in late March and then in his prepared remarks last week at the press conference releasing the report. It seems fair to hold Barr to account for the contents of these two prepared expositions in a way that it might, for example, be unfair to ask him to account for things he might have said on the spur of the moment. So here are a few questions that seem worth asking and that Congress might consider when Barr next appears before it to testify:
First, why prepare a summary letter at all? The executive summaries prepared by the special counsel's office are now public. And, as the New York Times has demonstrated, the excerpts of the report contained in Barr's original summary letter are at best a favorable spin on the report and at worst a rather transparent effort to mislead the public in advance of the report's release. Why engage in that sort of charade when ready-written summaries created by Special Counsel Robert Mueller's team were available for release? Well, Barr has said that he was concerned that the report might contain grand jury material, noting that every page of the report was marked as having possibly contained such information. And some Justice Department officials reiterated that to the New York Times, saying "the Justice Department quickly determined that the summaries contain sensitive information, like classified material, secret grand-jury testimony and information related to current federal investigations that must remain confidential."
It's now clear that this wasn't, strictly speaking, completely true. To be sure, the report did have a blanket warning on the top of every page that it might contain grand jury material, and the two executive summaries to Volumes I and II did have some material relating to ongoing matters under investigation. But the report released last week after thorough review contained absolutely no redactions whatsoever in the Mueller summaries for grand jury material or classified information. So, again, the question for Barr is simple: Why not release the summaries themselves? And, relatedly, why edit the summaries in ways designed to mislead? Why have unnamed "officials" falsely claim to the Times that the summaries required redaction for grand jury or classified reasons when, as it turns out, they did not? Is that just poor lawyering or something ... different?
Second, why let the president's private attorneys see the Mueller report before everyone else? Barr has explained that he let the White House attorneys see the document for review of possible executive privilege claims and that at least makes some sense in the context of the existing legal structure. But why allow Rudy Giuliani, Jay Sekulow and other private attorneys spend ten hours with the report before its public release? In his prepared remarks, Barr explained, "[T]he president’s personal counsel requested and were given the opportunity to read a final version of the redacted report before it was publicly released. That request was consistent with the practice followed under the Ethics in Government Act, which permitted individuals named in a report prepared by an independent counsel the opportunity to read the report before publication."
That seems to be a remarkably strange justification. The provisions of the Ethics in Government Act relating to independent counsels lapsed in 1999, almost 20 years ago. That law provided a statutory right for individuals named in a report by an independent counsel to review the portion related to them and comment on it. In the normal course of statutory interpretation, the fact that Congress chose not to renew a statutory right of this sort would provide a strong inference that the right no longer exists. Why and how is it that Barr could rely on practices from a now-defunct statute to justify his actions? And why was that right afforded only to President Trump's attorneys and not to all the other individuals who were named in the report, as compliance with the expired act would seem to require? Why, contrary to the practice of the independent counsel act that he extolled, did Barr provide Trump's lawyers (apparently) with access to the entire report, when the prior rule had been to provide a named individual only with access to the portions of the report that name him or her directly? Is all that just poor lawyering or something ... different?
Third, a process question about Barr's actions with respect to the obstruction investigation: Mueller declined to offer a prosecutive judgment about the president's obstructive conduct. (I've already expressed my disappointment with how the special counsel handled the question of criminal culpability in the obstruction portion of his investigation.) His justification was that doing so was unfair in a context where indictment was prohibited by binding departmental policy. From this, the attorney general concluded that the special counsel "le[ft] it to the attorney general to determine whether the conduct described in the report constitut[ed] a crime." With that premise, Barr then went on to conclude that no crime had occurred.
But, of course, the special counsel's report did no such thing. Mueller's decision to reach no judgment on criminality might be an implicit invitation to the attorney general to make that judgment for him. But it also might be (and, indeed, more fairly should be) read to suggest that no such judgment is appropriate for any departmental employee or executive branch official. To put it more clearly, the Mueller report is replete with references to Congress's impeachment power (at least 20 that I have counted) and can, in that regard, be read as an invitation to Congress to consider whether the president's conduct constitutes impeachable behavior. And it even has an explicit call out to future prosecutors to withhold judgment as to criminality and render a final determination after President Trump leaves office. But nowhere in the report (at least not that I have found yet) is there a similar call for the attorney general to make a contemporaneous judgment today as to how the matter ought to have been resolved.
Given that background, why did Barr decide to make a judgment when the exact same policy considerations that Mueller perceived as precluding his actions were applicable to the attorney general? Is the attorney general not bound by the same departmental policy as the special counsel? Or does Barr read the policy as applying only to subordinate Justice Department lawyers and not to the attorney general? Perhaps Barr views the prohibition on judgment as a one-way ratchet, applicable only if the judgment is condemnatory and not (as his was) when it is exculpatory? If so, how would that distinction be justified as a matter of law? (And does that not mean, by inference, that the special counsel reached the opposite conclusion?) Is this just poor lawyering or something ... different?
Fourth, Barr has said that "the White House fully cooperated with the special counsel’s investigation." It's a bit like shooting fish in a barrel, but one might ask how he squares that conclusion with the special counsel's own conclusion that Trump's refusal to testify was not justified and that his written answers were inadequate. Is that just poor lawyering or something ... different?
I could go on. One could ask, for example, what standard of proof Barr used in determining that the evidence did not support an obstruction charge? Or what the basis was for his decision to reject the "substantial evidence" of obstruction found by the special counsel on a number of occasions? One could ask for legal support for the proposition that, as Barr suggested during his prepared remarks, being frustrated and angry at the existence of an investigation is evidence of a lack of corrupt motive. Likewise, what legal support is there to suggest that unsuccessful efforts to obstruct are not criminal, or that the absence of an underlying crime means that obstruction can't be proven? (For those following along, none of these are what the law actually says.)
In short, like many, I was willing to give Attorney General Barr the benefit of the doubt when he was appointed. His long history of service to America suggested a fidelity to the rule of law and a belief in the value of the Department of Justice that would have been a welcome counterweight to the president's own approach to law. Now, having watched Barr's response to the Mueller report, much of the benefit of that doubt has dissipated. The attorney general has many questions to answer.