Thoughts on Barr and the Mueller Report

Jack Goldsmith
Saturday, May 4, 2019, 2:50 PM

I’ve been in a cave for several weeks crashing to complete my new book and am only now emerging to read Special Counsel Robert Mueller’s report and the commentary on it. I’ll hopefully have more to say on the report, especially on its legal analysis of criminal obstruction of justice as applied to the president.

Bill Barr is sworn in by Chief Justice John Roberts. (Photo: Department of Justice)

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I’ve been in a cave for several weeks crashing to complete my new book and am only now emerging to read Special Counsel Robert Mueller’s report and the commentary on it. I’ll hopefully have more to say on the report, especially on its legal analysis of criminal obstruction of justice as applied to the president. But for now I want to comment on the reaction to Attorney General William Barr’s handling of the report in his March 24 letter and his May 1 testimony. It seems over the top to me.

Action Under the Special Counsel Regulations

The Clinton Justice Department crafted the special counsel regulations to ensure that the relatively independent special counsel was properly restrained and accountable. In the words of the introduction to the regulations when first promulgated, the special counsel was “free to structure the investigation as he or she wishes and to exercise independent prosecutorial discretion to decide whether charges should be brought, within the context of the established procedures” of the Justice Department. “Nevertheless,” emphasized the drafters of the regulations, “ultimate responsibility for the matter and how it is handled will continue to rest with the Attorney General.” (My emphasis.)

The regulations bear out this description by subordinating the special counsel to Justice Department policy and the attorney general’s (or acting attorney general’s) ultimate review. Most notably, they authorize the attorney general, with notice to Congress, to nullify “any investigative or prosecutorial step” by the special counsel if he determines that it “is so inappropriate or unwarranted under established Departmental practices that it should not be pursued.” The attorney general can also “remove a Special Counsel” on various grounds. All of the special counsel’s reporting duties run to the attorney general and not to any outside body. In particular, the special counsel at the conclusion of his work must provide the attorney general with a confidential report explaining his prosecution or declination decisions. At that point the attorney general’s only obligation is to “notify” Congress that the investigation is over. He also “may determine” (my emphasis) that “public release of these reports would be in the public interest” if he complies with “applicable legal restrictions.”

By all public accounts, the contemplated system of coordination and oversight between the attorney general (for most of the time, Acting Attorney General Rod Rosenstein) and Special Counsel Robert Mueller worked well during the conduct of the investigation. When his investigation was complete, Mueller sent Barr a lengthy confidential report “explaining the prosecution or declination decisions,” as the regulations contemplate.

I think Mueller made a mistake, one that diminishes the perception of his independence and the credibility of his report, in failing to make a prosecutorial judgment one way or the other on obstruction, and especially in his extra-prosecutorial insistence that he was not “exonerating” the president. (Mueller opened himself up to this powerful rebuttal from the president’s special counsel, Emmet Flood.) Mueller’s action seems inconsistent with what the regulations tried to accomplish, which was to prevent extra-prosecutorial editorializing. In effect Mueller made an impeachment referral that the regulations do not contemplate, though he followed the regulations in leaving it to Barr to make the report public, which he knew Barr had pledged to do.

Once Mueller delivered his report to Barr, his work was complete and all of the responsibility under the regulations about what to make public shifted to Barr. Barr then followed the regulations and notified Congress on March 22 that Mueller’s investigation was complete. At that point Barr’s strict reporting duties under the regulations were complete.

However, Barr pledged in his confirmation hearings that he would not impede Mueller’s investigation and that he would disclose as much as he could of the Mueller report, consistent with the law. Barr made the Mueller report public in several steps. The main ones were the letter to Congress on March 24 advising it of Mueller’s “principal conclusions” and then the disclosure of the redacted report on April 18.

Barr’s March 24 Letter

The enormous criticism of Barr’s March 24 letter seems greatly exaggerated to me. The letter purported to state the Mueller report’s “principal conclusions.” It did that, and it specifically noted Mueller’s damning conclusion, which the public later learned Barr thought was inappropriate, that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Three days later, on March 27, Mueller wrote to Barr that his “summary letter ... did not fully capture the context, nature, and substance” of the special counsel’s “work and conclusions.” The special counsel has no authority over public release and no continuing jurisdiction in the matter, but I see no problem with him making the request to Barr (though I hope it was not the previously disciplined Mueller team that leaked the letter). In any event, Mueller was quite right that Barr’s letter did not fully capture the context, nature and substance of Mueller’s 400-page report. It would have been very hard for anything short of immediate full disclosure of the report to do that.

Barr decided in his discretion simply to state Mueller’s bottom-line legal conclusions and then as soon as possible put out the whole report. Mueller wanted a different preliminary release, and he apparently designed his introduction and executive summary with that in mind. But under the regulations, to repeat, this was entirely Barr’s decision to make, not Mueller’s. Barr initial minimalist approach strikes me as reasonable given (i) Mueller’s odd legal and judgmental reasoning in Volume II, (ii) Barr’s clear intention to publish as soon as possible as much of the report as possible, and (iii) Barr’s belief, made clear in his testimony, that legal decisions are the essence of Justice Department responsibilities.

The day after Barr read Mueller’s letter and spoke with Mueller about his concerns, he made clear to the public what he was doing, and why, and he sought to address Mueller’s concerns short of complying with Mueller’s request. Barr stated in a letter to Sen. Lindsey Graham and Rep. Jerry Nadler that the press had “mischaracterize[ed]” his March 24 letter as a “summary of the Special Counsel’s investigation and report.” He added:

My March 24 letter was not, and did not purport to be, an exhaustive recounting of the Special Counsel’s investigation or report. As my letter made clear, my notification to Congress and the public provided, pending release of the report, a summary of its “principal conclusions”—that is, its bottom line. The Special Counsel’s report is nearly 400 pages long … and sets forth the Special Counsel’s findings, his analysis, and the reasons for his conclusions. Everyone will soon be able to read it on their own. I do not believe it would be in the public’s interest for me to attempt to summarize the full report or to release it in serial or piecemeal fashion.

Barr was under enormous pressure from all sides to say something about Mueller’s report as soon as he received it. He claims he asked Mueller if he wanted to review the March 24 letter, and says that Mueller declined. Barr surely could have worded the March 24 letter more carefully with more time. But I expect that anything he said short of exactly what Mueller wanted him to say would have attracted furious criticism. The decision was clearly Barr’s to make and he had good reasons for what should be disclosed and when, and he explained them publicly.

In this light, and especially in light of subsequent events, I fail to see how Barr warrants the super-harsh personal criticism he has received over the letter. Those subsequent events include (i) publicly clarifying that he, Barr, did not purport to capture or summarize everything in Mueller’s report; (ii) working around the clock to get the relatively lightly redacted report made public—something Barr had no legal duty to do; (iii) testifying twice before Congress to explain his reasoning; and (iv) allowing Mueller to testify before Congress if he wants. These are not the actions of a man trying to mischaracterize the report or hide the ball. And they cured any objections that might have properly been lodged against the quickly written original letter.

Barr’s May 1 Testimony (And His April 18 Press Conference)

Several important elements in Barr’s May 1 testimony put what the attorney general has done in a better and, I think, fairer light than his critics have portrayed.

First, Barr believes that the Justice Department’s job in this context is to decide (as he told Sen. Richard Blumenthal) “whether or not there is a crime” and nothing more. That is what the special counsel regulations and Justice Department traditions counsel as well. This is why Barr objected to Mueller’s strange in-between decision “not to make a traditional prosecutorial judgment.” No U.S. attorney would ever do that, and Barr clearly thinks it odd, and probably wrong, that Mueller did that. Whether one thinks Barr is right or wrong (I think he’s right), this is a perfectly respectable judgment for an attorney general to make.

Second, and consistent with the first point, Barr says he does not believe the Justice Department should opine on the rightness or wrongness of the president’s action independent of its criminality. Barr refused to condemn or praise or even comment on the president’s actions toward the Russia investigation that were unrelated to the decision about criminality. He made this point several times. When Blumenthal asked whether Mueller’s report showed that Trump lied to the American people, Barr responded: “Well, I am not in the business of determining when lies are told to the American people. I am in the business of determining whether a crime has been committed.” When Sen. Mazie Hirono asked whether it is “okay for a president to ask his White House counsel to lie?” Barr responded: “Well, I'm willing to talk about what’s criminal.”

Third, Barr thinks that Congress and the American people should be the ultimate judges of the appropriateness of Trump’s actions beyond their criminality. He released hundreds of pages of very damaging information on the president that he did not have to release, and he clearly does not think that his prosecutorial judgment is the end of the matter. As Barr said in his May 1 testimony: “The report is now in the hands of the American people. Everyone can decide for themselves. There’s an election in 18 months. That’s a very democratic process. But we [the Justice Department] are out of it. We have to stop using the criminal justice process as a political weapon.”

Thanks to Mueller’s hard work and Barr’s decision to publish the Mueller report nearly in full, the Congress and the American people, and the “democratic process,” can now judge the president. Which is as it should be.

The passage above also reveals, fourth, Barr’s long-standing worry that the Justice Department generally, and special and independent counsels specifically, often criminalize political differences (or appear to do so), to the detriment of democratic processes and the proper enforcement of the criminal law. That judgment is uncontroversial and, indeed, was the basis for the imperfect special counsel regulations in the first place. Barr also pretty clearly believes here that Trump got caught up in a politicized use of the Justice Department. I think some elements of Volume II of the Mueller report unfortunately support this view (as noted above and as outlined in the Flood letter). But mostly the report does not support this view, especially in Volume I. The nation badly needed a definitive account of Russian interference in the 2016 election and its relationship to the Trump campaign, and Mueller delivered that as credibly and completely as anyone could. I am not sure Barr would disagree; I think most if not all of his objections are to Volume II.

Fifth, many of Barr’s actions are informed by his belief that the special counsel’s analysis related to obstruction was legally wrong and a dangerous precedent for the executive branch. I tend to agree for the basic reasons that Josh Blackman explained here and here and here. Barr’s views on executive power are not shared by everyone, of course, but they basically reflect a standard conservative legal interpretation of Article II for almost fifty years now. Barr’s views were well known and well fleshed out before and during his confirmation hearings. No one should be surprised that he holds these views.

While I think the criticisms of Barr in connection with the Mueller report have been overheated, I also think Barr made two mistakes. First, he went too far in his May 1 testimony in saying that Trump “fully cooperated” with the special counsel’s investigation. It would have been more accurate to say, as he said in the April 18 press conference, that the White House (meaning the institution independent of the president) “fully cooperated” and that “the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.” The truth is that the president himself—in his refusal to give a personal interview, and especially in his tweets and actions to harass and threaten and try to impact the Justice Department and special counsel—did not cooperate, much less “fully cooperate.”

Second, I think Barr made a bigger mistake when he self-consciously said—in his April 18 press conference and his May 1 testimony—that Mueller cleared the president of “collusion” with the Russians. The technical legal term, as Mueller explained, is “conspiracy,” not “collusion.” Yes, as Mueller noted, the term “collusion” was used by the acting attorney general in confirming the investigation’s scope, and also by the press. And yes, the president has been accused by critics of “collusion” for years now. But consistent with his insistence that the Justice Department makes legal and not political or moral conclusions, it would have been much better for Barr to avoid the term “collusion.” If there was a rebuttal to be made to the “collusion” charge, someone other than the attorney general should have made it. Perhaps Barr thought, as he suggested a few times, that the president was so unjustifiably wronged by the entire process that his full-throated “no collusion” statement was warranted. But Barr opened himself up to legitimate criticism when he assiduously avoided commenting on the merits of extra-criminal conduct that would be harmful to the president but appeared to comment on such conduct when it was helpful to the president. “We are not in the business of exoneration,” Barr testified. But in some places, especially with respect to the Trump campaign and Russia, he seemed to try to do just that.

Finally, a few words about Barr’s statements that the executive branch was “spying” on the Trump campaign. Barr explained himself on May 1 in response to a question from Sen. Sheldon Whitehouse:

I'm not going to abjure the use of the word spying. I think, you know, my first job was in CIA and I don’t think the word spying has any pejorative convert connotation at all. … [T]o me the question is always whether or not it’s authorized and adequately predicated, spying. I think spying is a good English word that in fact doesn’t have synonyms because it is the broadest word incorporating really all forms of covert intelligence collections. So I’m not going to back off the word “spying” to—except I will say I’m not suggesting any pejorative.

Barr also added that his original remark was “off the cuff” but that he “commonly” uses the term “spying” in this way. (For what it’s worth, Senator Whitehouse, among many others, has used the term “spying” in this way too—see here and here.)

I have no idea if Barr is being candid here or winding people up—or both. But he has signaled, especially in his original “spying” pronouncement, that he has concerns about the origins and operation of the investigation of the Trump campaign. And he says he plans to investigate it.

This is in theory an appropriate thing for the Justice Department to do, for two reasons. First, while there is plenty of prima facie evidence of potentially untoward Trump campaign-Russia contacts, there is also plenty of prima facie evidence of potentially untoward intelligence agency activity in connection with its investigation of the Trump campaign and presidency. For example: the horrible animus displayed in texts by Peter Strzok toward the president and his supporters while investigating his campaign; the truly unprecedented and terribly damaging leaks of U.S. person information collected via FISA or E.O. 12,333; and the at least questionable FBI decision, after Trump fired FBI Director James Comey, to investigate the president as a counterintelligence threat premised on the judgment that he was a “threat to national security.”

Second, the FBI and the intelligence community more broadly need better internal guidance and procedures when they confront possible evidence of improper foreign contacts or counterintelligence threats by a presidential campaign. These institutions faced what was probably an unprecedented situation. It would have been entirely irresponsible for senior leadership in these agencies not to follow up and investigate the extraordinary Russia contacts by the Trump campaign. But they would have been much better situated to avoid controversy later if there were express guidance, process and accountability mechanisms in place for the decisions they made in this most delicate of contexts.

The country needs a full accounting of what the intelligence community did in the 2016 presidential campaign and in other presidential campaigns, as a basis for needed reform in this area. I just hope that Barr conducts this review in a way that is and appears to be scrupulously fair to all involved, so that it does not seem like political payback that would weaken the important Justice Department norm against politicized retaliatory investigations. That argues, I think, for inspector general review, not attorney general review. I am not sure Barr agrees, however. We will see.

* * *

I don’t buy Benjamin Wittes’s suggestion that Barr may be acting “to preserve his position in the mad king’s court.” To the contrary, I think Barr is trying to limit the damage to Article II that has resulted from Trump’s unfathomably stupid, impulsive, self-defeating efforts to wield executive power to control the Russia investigation, and Mueller’s overzealous reading of obstruction law and his odd nontraditional prosecutorial decision in response. Sometimes Justice Department independence means standing up to the president. And sometimes it means taking unpopular positions in defense of the presidency. I am pretty confident that the latter is what Barr is up to.

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Non-Resident Senior Fellow at the American Enterprise Institute. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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