Criminal Justice & the Rule of Law Executive Branch

What to Make of Bill Barr’s Letter

Mikhaila Fogel, Quinta Jurecic, Susan Hennessey, Matthew Kahn, Benjamin Wittes
Sunday, March 24, 2019, 7:23 PM

Barr’s letter contains good news for the president, but it also raises ominous questions that only Mueller’s report can answer.

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

Published by The Lawfare Institute
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Leave it to President Trump to describe as “Total EXONERATION” a document that specifically quotes Special Counsel Robert Mueller as saying that one of his principal findings “does not exonerate” the president.

The brief letter sent by Attorney General William Barr to congressional leaders on Sunday afternoon summarizing Mueller’s findings is a complicated document. In key respects, it contains very good news for President Trump about a scandal that has dogged his presidency since before he even took office. The determination of just how good the news is—whether it amounts to the exoneration Trump claims on these points or whether we’re dealing with conduct just shy of prosecutable—will have to await the text of Mueller’s report itself. But for those who quite reasonably demanded a serious investigation of Russian interference in the 2016 election and of cooperation and coordination with it on the part of the Trump campaign, it has to be significant that Mueller, after the better part of two years of investigating, has not found that anyone associated with the Trump campaign knowingly conspired with Russia’s efforts.

In other respects, however, Barr’s summary of Mueller’s report is ominous for the president. While Mueller did not find that Trump obstructed his investigation, he also made a point of not reaching the opposite conclusion: that Trump didn’t obstruct the investigation. Indeed, he appears to have created a substantial record of the president’s troubling interactions with law enforcement for adjudication in noncriminal proceedings—which is to say in congressional hearings that are surely the next step.

What makes the document more complicated still is the fact that it offers only a skeletal description of Mueller’s report. It only purports to convey Mueller’s top-line findings and does not include any of the evidence or legal analysis that underlies those findings. It doesn’t tell any of the stories that the Mueller report will tell. It only distills and announces two high-altitude legal conclusions from those stories. Assuming that Barr is characterizing Mueller’s findings reasonably, that leaves a whole raft of questions unanswered about what those stories will be—and what their impact will be.

Barr’s letter is divided into two main sections, corresponding to what the attorney general characterizes as the two components of the report itself. The first concerns “collusion”—as it has come to be called, though the letter never uses that term—between the Trump campaign and the Russian government. Barr’s account of Mueller’s finding is not quite the “No Collusion!” that the president has so often crowed. Barr does not indicate affirmatively that Mueller found that collusion didn’t happen. The report, rather, makes clear that Mueller did not find evidence of conspiracy to the rigorous standards of the criminal law. That important difference aside, this finding seems altogether salutary for Trump.

Barr describes Mueller’s report as outlining the “Russian effort to influence the election” and documenting “crimes committed by persons associated with the Russian government or in connection with those efforts.” He notes that one of the special counsel’s primary considerations in investigating Russian interference was “whether any Americans—including individuals associated with the Trump campaign—joined the Russian conspiracies to influence the election, which would be a federal crime.”

Mueller’s top-line finding with regard to Russian interference, as Barr quotes it, is that “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” In a footnote, Barr specifies that the Mueller report defined “‘coordination’ as an ‘agreement—tacit or express–between the Trump Campaign and the Russian government on election interference.’”

Barr reports that the special counsel “determined that there were two main Russian efforts to influence the 2016 election”—both of which were the subjects of bombshell indictments. The first involved the Internet Research Agency’s disinformation campaign, which was designed, as Barr says, “to sow social discord, eventually with the aim of interfering with the election.” Barr goes on to say that “the Special Counsel did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated” with the IRA’s campaign. (Richard Pinedo, a California resident, pleaded guilty to identity fraud in connection with the IRA’s efforts, but there is no indication that he knew he was assisting Russian nationals at the time.)

The attorney general then provides a brief, high-level summary of Mueller’s indictment of members of Russian military intelligence: “Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks.” Those activities, says Barr, led the special counsel to bring criminal charges against “a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election.” Barr again emphasizes that “the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspirated or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.”

It may or may not be significant that Barr does not here make references to U.S. persons not affiliated with the Trump campaign, as he did when describing the special counsel’s investigation of the IRA’s efforts. Nor does he address the possibility of conspiracy or coordination with the “various intermediaries” to which he previously referred.

More importantly, Barr also leaves unanswered whether Russia’s “multiple offers” of assistance to the Trump campaign refer only to events Mueller has already chronicled (including Joseph Mifsud’s efforts to reach out to George Papadopoulos and attempts by Russian nationals to reach out to Michael Cohen in late 2015), if the report will also include events previously reported in the press (such as the Trump Tower meeting between Trump campaign associates including Donald Trump Jr., Jared Kushner, and Paul Manafort and Russian government associates offering “dirt” on Hillary Clinton), or whether it will offer an even more substantial history of efforts on the part of the Russian government to engage and aid the Trump campaign.

The conclusion on the Russian conspiracy prong stands for one proposition unambiguously: The special counsel’s office did not believe that it could reasonably prove in court that any Trump campaign member or affiliate committed a crime in assisting the Russian government with its efforts. That’s a significant thing. It means there is no smoking gun, that there’s no other big shoe to drop that establishes criminality. It means that, after as thorough an investigation as the United States government is capable of conducting, prosecutors couldn’t find any actual agreement—“tacit or express”—on the part of anyone associated with the Trump campaign to work with the Russians to undermine the U.S. election. Every American should be cheered by that conclusion; the ramifications of any alternative are difficult to contemplate.

There’s also an important message for Congress in here. If as thorough and comprehensive a federal investigation as this one has failed to establish conclusive evidence of “collusion” as Mueller defines it—either because there was no actual collusion or for some other reasons—it is highly unlikely that a congressional investigation is going to strike paydirt on this point. Congress might reach different conclusions regarding the significance of evidence Mueller’s team identified, but it probably isn’t going to sound depths that Mueller didn’t plumb. The working presumption should be that the Mueller report contains the complete factual record, at least on the points he purports to address.

Put simply, the criminal investigation didn’t find any crimes on the U.S. side, though it found plenty on the Russian side. It doesn’t means one cannot conclude, based on the factual record, that people behaved recklessly, unpatriotically or stupidly. But it does mean that the criminal investigation is over. That’s good news, in general, and it’s good news for President Trump.

Depending on what’s actually in Mueller’s report, the news could get better still for the president. This section of Barr’s summary, after all, is broadly consistent with the Trump campaign’s having had very little to do with Russia’s conduct. While the summary says that there were “multiple offers from Russia-affiliated individuals,” its language is consistent with no one in the campaign having taken the Russians up on it—beyond the public hints and the untoward meetings and communications that are already part of the public record, that is. Yes, the contacts were suspicious, even quite inappropriate, and some people did commit crimes in lying about them both during the campaign and during the transition. But this section of the summary is consistent with a report that says that Mueller looked everywhere yet couldn’t find any knowing engagement on the part of Trump’s campaign with Russia’s interference in the election.

But Barr’s summary would also be broadly consistent with many other possible reports. It would be consistent with, for example, a report that finds lots of “evidence of collusion” that for one reason or another falls short of criminal conduct. It would be consistent with a report that describes conduct that falls short of the criminal standard by the barest of technicalities. It would be consistent with a report that finds that individuals associated with the president’s campaign were aware of the Russian efforts to interfere in the election, welcomed such assistance, and did not in any way warn the American public about it—but who did not take the requisite step of entering into any criminal agreement to assist the effort either. It would also be consistent with a report that suggested that Trump’s principal engagement with the Russians was not over hacked emails at all, but instead about the tower he was negotiating to build in Moscow even as the campaign was going on.

Our point here is not that that report suggests any of these things or that if one squints at Barr’s summary long enough, it is actually bad for the president. It isn’t. The point, rather, is that there is a huge range of conduct and findings that would be consistent with this top-line summary. How good the outcome is for the president—and to what extent it puts L’Affaire Russe to rest—depends on what the underlying facts look like.

The second section of the letter is both more complicated and less salutary for the president—and, again, readers must await the underlying document for a full accounting. In sharp contrast to the president’s tweet, Barr quotes Mueller as writing: “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.” As Barr puts it, Mueller actually “did not draw a conclusion” at all as to whether Trump committed obstruction of justice in his interactions with the investigation. He refrained in view of the “‘difficult issues’ of law and fact” involved in that determination.

Mueller, writes Barr, did not make a “traditional prosecutorial judgment” on the subject. Instead, for each act with a potentially obstructive nexus, “the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.”

This is, as a preliminary matter, a striking decision on Mueller’s part. It almost certainly flows from the difficult questions that arise when one tries to imagine how one would apply the obstruction of justice statutes to presidential acts that are, on their face, authorized by Article II of the Constitution—questions we have addressed at great length on this site.

In laying out this summary, Barr’s letter reveals several new facts about Mueller’s obstruction probe. First, it notes that Mueller’s report covers several actions by Trump that could raise obstruction concerns, “most of which have been the subject of public reporting.” This confirms what has long been suspected: that Mueller believed that at least some of the president’s publicly reported actions—likely including some of his public actions—could raise obstruction problems. It also suggests that there are potentially obstructive acts that have not yet been reported. Barr’s letter thus leaves the distinct sense that Mueller’s detailed accounting of the president’s potential acts of obstruction is significant, regardless of Barr’s own judgment as to the criminality of any of those acts.

It also makes clear that the Mueller report creates an extensive record on the obstruction question. And that may well be the point. After all, what is the point of a prosecutor’s amassing a factual record and then refusing, as Mueller apparently has refused, to evaluate it in a traditional prosecutorial framework? The answer the letter suggests but does not state is that the Mueller report has teed up the question of presidential obstruction for evaluation by a different actor—to wit, by Congress—on a decidedly noncriminal basis. Mueller, being barred from indicting the president, has done the investigation, has apparently declined even to evaluate the matter as a prosecutor, and has laid out all of the facts and the arguments for and against treating the president’s behavior as criminal. It is now for other actors to decide whether the conduct Mueller describes is acceptable in a president.  

While Mueller left the question of criminality unaddressed, Barr himself did not. Barr opines that Mueller’s “decision to describe the facts of his obstruction inquiry without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime”—though it is not clear why Barr felt this to be the case. Barr includes his own determination, along with Deputy Attorney General Rod Rosenstein’s, that Mueller’s evidence “is not sufficient to establish that the President committed an obstruction-of-justice offense.”

In justifying this view, Barr notes Mueller’s determination that “the evidence does not establish that the President was involved in an underlying crime related to Russian electoral interference” and argues that the lack of evidence of an underlying crime, though not dispositive, “bears upon the President’s intent with respect to obstruction.” The report does not identify any actions that, in Barr’s and Rosenstein’s view, “constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent,” each of which must be proven beyond a reasonable doubt in order to establish the crime of obstruction of justice under Justice Department guidelines.

Notably, Barr says that his and Rosenstein’s assessment was made independently of constitutional questions about the indictment and criminal prosecution of a sitting president. Though Barr does not make reference to any concerns over the interaction between presidential authority and possible obstruction offenses, it is worth keeping in mind his memorandum on the subject from June 2018, in which he argued that conduct authorized by Article II definitionally cannot constitute obstruction.

Finally, Barr indicates that more material from Mueller’s report is forthcoming, writing that his office is at work identifying information protected by Federal Rule of Criminal Procedure 6(e)—which protects material obtained before a grand jury from public disclosure—and “information that could impact other ongoing matters.” After that, Barr writes, he “will be in a position to move forward expeditiously in determining what can be released.”

So the good news is that there is more information on the way—though it is unclear how much more or when it will appear. Democratic members of Congress, including Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer, are already calling for the report to be released in its entirety. Pelosi and Schumer released a joint statement indicating skepticism of what they call “Mr. Barr’s public record of bias against the Special Counsel’s inquiry,” and House Judiciary Committee Chairman Jerry Nadler indicated that his committee will call on Barr to testify. Chairman of the Senate intelligence committee Richard Burr, for his part, thanked the attorney general for his letter and called for the release of “as much of the report as possible.”

The White House has, predictably, taken the opportunity to gloat: Press Secretary Sarah Huckabee Sanders, echoing the president, declared Barr’s letter to be a “total and complete exoneration of the President.” Senate Majority Leader Mitch McConnell blandly announced his hope that “the Special Counsel’s report will help inform and improve our efforts to protect our democracy.” Donald Trump Jr. chose to blast what he called “Collusion Truthers.”

Whether this proves the beginning of the end of L’Affaire Russe or the prelude to a series of additional disclosures about activity on the part of the Trump campaign and the president himself that are disturbing but happen to fall just short of criminal activity, it is important not to lose sight of the significance of the investigation having been completed. That Mueller was able to complete his probe into a sitting president without having his investigation blocked—despite ongoing presidential braying against the probe and menacing of the Justice Department’s leadership—is no small thing.

That Mueller was able to write his report, to document his findings in a fashion that can allow for transparency and, if necessary, accountability, is of immense value. The question of what to do with the record Mueller has compiled will ultimately fall to Congress.

Mikhaila Fogel was an associate editor at Lawfare and a research analyst at the Brookings Institution. She previously worked as a legislative correspondent for national security and foreign affairs issues in the Office of Sen. Susan Collins. She holds a bachelor’s degree from Harvard College, where she majored in history and literature and minored in government and Arabic.
Quinta Jurecic is a fellow in Governance Studies at the Brookings Institution and a senior editor at Lawfare. She previously served as Lawfare's managing editor and as an editorial writer for the Washington Post.
Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.
Matthew Kahn is a third-year law student at Harvard Law School and a contributor at Lawfare. Prior to law school, he worked for two years as an associate editor of Lawfare and as a junior researcher at the Brookings Institution. He graduated from Georgetown University in 2017.
Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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