Many people have asked me: so how, exactly, did Bill Barr mislead the American people about the content of the Mueller report? Because you asked, and because I am the sort of person who apparently enjoys beating his head repeatedly against a wall, I will answer.
The best answer I can give you is: read this article by Benjamin Wittes.
The second-best answer — but necessary for the vast majority who won’t click the link — is to summarize it, with my thoughts.
Wittes begins by noting (and I quite agree) that we are not talking here about perjury.
Barr did not lie in any of these statements. He did not, as some people insist, commit perjury. I haven’t found a sentence he has written or said that cannot be defended as truthful on its own terms, if only in some literal sense. But it is possible to mislead without lying. One can be dishonest before Congress without perjury. And one can convey sweeping untruths without substantial factual misstatement. This is what Barr has been doing since that first letter. And it is utterly beneath the United States Department of Justice.
San Fran Nan’s overwrought declaration that Barr committed a “crime” in his testimony is typical Resistance overreach. Barr was a weasel. He was a dissembler. He was Clintonesque and bumbling. But there is no case for impeachment of Barr — especially since the Senate knew Barr was a snake when they let him in.
Wittes does break down several specific ways in which Barr misled the public, however, and I think it’s worth going through them point by point and adding my own thoughts.
Even before he begins listing substantive mischaracterizations, Wittes notes the selective quotation Barr engaged in. If you want detail, Wittes has it, with quotes and links. This New York Times piece by Charlie Savage shows how Barr selectively quoted Mueller in several ways to spin for Trump. For example, in discussing possible motives for obstruction, Mueller said that while the evidence did not establish a conspiracy, “the evidence does point to a range of other possible personal motives animating the president’s conduct.” Mueller listed some of those:
These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events — such as advance notice of WikiLeaks’ release of hacked information or the June 9, 2016, meeting between senior campaign officials and Russians could be seen as criminal activity by the president, his campaign or his family.
[ASIDE] I would add that it’s pretty clear Don Jr. committed a computer crime, but that Mueller decided not to prosecute it because he considered it relatively trivial.
One item in the #MuellerReport that seems to have largely escaped attention is the fact that Donald Trump Jr. committed a crime–specifically, he violated the computer fraud and abuse act. It appears that he wasn't charged only because of prosecutorial discretion. A few thoughts:
— Carissa Byrne Hessick (@CBHessick) April 29, 2019
I say “pretty clear” because that portion is redacted — which appears to me to have been the major disagreement between Barr and Mueller on redactions. [END ASIDE]
Anyway, Barr cherry-picked Mueller’s statement about how there was no finding of a conspiracy and used that to argue that Trump had no reason to obstruct, ignoring all the other potential reasons Mueller had listed. And this is just one example of many.
But let’s get past selective quotation to the listed active misrepresentations cited by Wittes.
1. Absence of a finding that bringing a criminal case is warranted is not absence of evidence that the crime happened.
The first element is Barr’s repeated conflation of that which Mueller has deemed to be not provable to the exacting standards of criminal law with that which is not true at all or for which there is no evidence.
Yup. Mueller makes a point of stating in his report: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” But when he said that his investigation had failed to “establish” conspiracy (and by the way, he explicitly disclaimed analyzing collusion, but we’ll get to that in a moment), Barr used that to say Mueller had found there had been “no collusion.” Barr said it again and again. Typical statement from his presser: “Yet, as he said from the beginning, there was in fact no collusion.”
Which leads us directly to Wittes’s second point:
2. A finding that “conspiracy” was not established is not the same as saying Mueller found no “collusion.”
Barr’s second sleight of hand—also visible in the quotations above—is rendering the absence of a criminal-conspiracy charge as reflecting an active finding of “no collusion.”
This is something I identified early on as a problem with Barr’s summary descriptions of Mueller’s findings, and I refer you to my earlier post for details and lengthy quotes from Mueller about how he did not even purport to analyze collusion but merely conspiracy. Why is this important? Because there is a colloquial definition of “collusion”: namely, “secret agreement or cooperation especially for an illegal or deceitful purpose.” Those two disjunctives mean that, in a colloquial sense, secretly cooperating for a deceitful but legal purpose is “collusion.” To take one example, Mueller’s office determined for technical reasons that it was not illegal for Don Jr. and company to meet secretly with someone he believed to be representing “[t]he Crown prosecutor of Russia” to get dirt on Hillary Clinton. Was this meeting for a “deceitful” purpose? Trump superfans will say Trump had every right to get dirt on his political opponent for a foreign government — but if everything was kosher and aboveboard, these superfans may have trouble explaining why the President participated in drafting a misleading public statement about the nature of the meeting, and sent his counsel and Sarah Sanders out to falsely claim that he had played no role in drafting Jr.’s false statement about the meeting.
So far we have listed two mischaracterizations, and Wittes explains:
This pair of mischaracterizations has the effect of transforming Trump into an innocent man falsely accused.
Wittes’s third point is Barr’s adoption of Trump’s “spying” narrative. I’m not going to waste any time on that point because it’s not clear to me (especially in light of the most recent revelations) the extent to which there is any factual basis for it. So I’ll go to point #4:
4. Barr claims the President “cooperated” despite multiple potential acts of obstruction listed in the report.
This made for some good comedy when Barr was testilying, I mean testifying, in response to Sen. Leahy’s questions. As you’ll see in the clip below, Leahy would bring up a potential act of obstruction and ask: is this an example of Trump cooperating? For example, the President’s attorney told Manafort and Cohen they’d be taken care of if they did not cooperate with Mueller. Is this cooperating by Trump? Barr says there’s no conflict between that finding and his claim that Trump cooperated. Hmmm. How about when Trump told his aide Corey Lewandowski to tell the Attorney General to unrecuse himself, shut down the investigation, and declare Trump had done nothing wrong? Total cooperation by Trump? Barr, initially seemingly ignorant of this episode (“where is that in the report?”), kept trying to shift the question to whether such acts were obstruction, but Leahy stayed on him: is it total cooperation to dictate a message to an aide to tell the Attorney General to unrecuse himself, shut down the investigation, and declare Trump had done nothing wrong? Barr says sure, that’s still cooperation with the investigation.
If you’re inclined to defend Barr, I suggest you actually watch that clip. It’s short: just a couple of minutes. And it’s high comedy. What a dishonest twit.
This post is getting long, and if you can watch that clip and still defend Bill Barr, nothing else I can say will matter to you. I’ll try to quickly summarize Wittes’s remaining points. His fifth point is that “if you first adopt the fiction that the investigative subject is an innocent man falsely accused and being pursued by politically motivated FBI agents engaged in improper ‘spying,’ and that he is nonetheless endeavoring in good faith to cooperate with his prosecutors, that does change the lens through which you look at his conduct.” But Mueller’s report does not actually support that fiction. Also, Barr looks at each act of potential obstruction in isolation, to see if there is potential excuse for each in isolation, when Mueller made clear it was all to be examined together. As a prosecutor, I know this is a typical defense strategy: don’t look at the big picture, folks! Just pick apart each piece of evidence on its own. But blinding one’s self to the big picture is not what the law or common sense calls for, and it’s not what Mueller called for.
Finally, Barr seriously misled the public when he claimed:
The — I — I — I’d leave it to his description in the report, the special counsel’s own articulation of — of why he did not want to make a determination as to whether or not there was an obstruction offense. But I will say that when we met with him — Deputy Attorney General Rosenstein and I met with him, along with Ed O’Callaghan, who is the principal associate deputy on March 5th, we specifically asked him about the OLC opinion and whether or not he was taking the position that he would have found a crime but for the existence of the OLC opinion. And he made it very clear several times that that was not his position. He — he was not saying that but for the OLC opinion he would have found a crime; he made it clear that he had not made the determination that there was a crime.
This is technically accurate and consistent with the report: Mueller does not say that but for the OLC opinion he would have found a crime, and he clearly did not make the determination that there was a crime. BUT — he also did not make the determination that Trump had not committed a crime. And critically, part of the reason he refused to make any call on this topic was because of the OLC opinion! As Wittes says:
I don’t know what Mueller told Barr privately, but the report does not support this claim. Mueller lists four “considerations that guided our obstruction-of-justice investigation.” The first of them states that the Justice Department “has issued an opinion finding that ‘the indictment or criminal prosecution of a sitting President would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions’ in violation of ‘the constitutional separation of powers.’” Because Mueller is an officer of the Justice Department, “this Office accepted [the department’s] legal conclusion for purposes of exercising prosecutorial jurisdiction.”
The use of the word jurisdiction here is not casual. It means that Mueller believes he lacks the authority to indict the president. Because of that, he goes on to explain, he did not evaluate the evidence to render a traditional prosecutorial judgment. The report offers no support for the notion that Mueller stayed his hand on obstruction out of concern for the strength of the evidence.
Wittes’s article is a damning conglomeration of ways that Barr misled the public. And although many, many Republicans are arguing that Barr’s spin doesn’t matter because we now have the final report, these are the same people who would tell you that it is critically important that a headline about the report’s conclusions put the words “no collusion” in the headline, because first impressions matter:
Here's @mzhemingway retweeting complaints about headlines on news stories that omit what she thinks is important, because hey, the headline sets the tone and first impressions matter. pic.twitter.com/WuUS4cTFc1
— Patterico (@Patterico) May 3, 2019
A final note about Bill Barr, noted by our friend DRJ. Charlie Crist asked him a while back: hey, we’re seeing all these reports about Mueller’s staff being upset about your letter. Do you know what their concerns are? Barr said he didn’t, even though he had Mueller’s letter in hand and knew exactly what their concerns were. When confronted with this two days ago, Barr said: Crist’s question was about what Mueller’s staff was complaining about, not what Mueller himself thought. And so I didn’t mention the letter because it was from Mueller and not his staff! Except that, in the same hearing, he said that he thought Mueller’s letter was “snitty” and had probably been written by someone on his staff.
Well, if that’s what he thought, then when he was asked by Crist about whether he knew what the concerns of Mueller’s staff were, he knew exactly what they were from the letter. Meaning he was not honest with Crist, and his explanation for that dishonest answer makes no sense. I’ll add that he also testified that when he talked to Mueller, Mueller kept talking about the concerns that “they” (clearly meaning Mueller and his staff) had. Not “he.” “They.”
This kind of deserves its own post rather than a brief mention at the end of a long post, but I can’t help myself.
So: yes, we can now evaluate the report for ourselves. But you know what else we can now evaluate for ourselves? Bill Barr’s credibility. And I, for one, find it wanting.
[Cross-posted at The Jury Talks Back.]