Review of Barr's overall performance so far, from the chief editor of lawfare, Ben Witttes. This is someone who has previously supported Barr's approach.
https://www.theatlantic.com/...catastrophic/588574/ “
Not in my memory has a sitting attorney general more diminished the credibility of his department on any subject. Barr has consistently sought to spin his department’s work in a highly political fashion, and he has done so to cast the president’s conduct in the most favorable light.”
7 areas of Wittes' concern:
1.
...Yet Barr frequently talks as though Mueller found nothing of concern with respect to the underlying conduct on the part of the Trump campaign. “So that is the bottom line,” Barr said at his press conference. “After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the special counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.”
Barr began his next sentence with, “After finding no underlying collusion with Russia …” Note his shift. In the first iteration, Barr is describing—accurately, if generously—that Mueller “did not find” something. By the second, however, he has pivoted to imply that Mueller found it didn’t happen. Barr vacillates in his public statements frequently from such careful, lawyerly descriptions of what Mueller did not find or establish to sweeping statements of vindication for Trump and his campaign.
The text of the Mueller report leads me to suspect that Mueller does not share Barr’s cavalier attitude toward the voluminous contacts between Russians and Trump-campaign figures and the positive enthusiasm for, and pursuit of, hacked emails on the part of the campaign. Had Mueller found no evidence of conspiracy, rather than insufficient evidence, he would have said so.
2.
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.” These two are very different matters. Conspiracy is a criminal charge. Collusion is a colloquial claim about history. Yet Barr, at his press conference, actually said that “there was in fact no collusion.” He used the phrase
no collusion over and over. He even described it as the investigation’s “bottom line.”
In other words, Barr is not merely translating the absence of
sufficient evidence for charges into a crime’s not taking place; he is translating the crime’s not taking place into an absence of misconduct in a more colloquial sense. He is also using the president’s specific talking point in doing so. This pair of mischaracterizations has the effect of transforming Trump into an innocent man falsely accused.
3.
Barr amplifies this transformation with his third layer of misrepresentation: his adoption of Trump’s “spying” narrative, which states that there was something improper about the FBI’s scrutiny of campaign figures who had bizarre contacts with Russian-government officials or intermediaries. Barr has not specified precisely what he believes here, but yesterday’s Senate hearing was the second congressional hearing at which he implied darkly that the FBI leadership under James Comey had engaged in some kind of improper surveillance of the Trump campaign. In other words, not only is the president an innocent man falsely accused, but he’s now the victim of “spying on a political campaign”—as
Barr put it a few weeks ago—by a biased cabal running the FBI.
4.
And here’s the fourth layer of misrepresentation. Barr has repeatedly insisted that our long-suffering president fully cooperated with the investigation, notwithstanding its illegitimate birth and the fact that there was nothing to any of the allegations it investigated. “The White House fully cooperated with the special counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims,” he said at his press conference.
I suspect this would also come as a surprise to Mueller, who might point out that Trump tried to get witnesses not to cooperate—dangling pardons and seeming to threaten their families with investigation if they “flipped.” Mueller might point out that Trump tried to fire Mueller for conflicts that his own staff regarded as “silly” and “ridiculous.” Mueller might point out that Trump tried to rein in his jurisdiction, limiting him to the investigation of
future electoral interference. Mueller might point out that Trump refused to sit for an interview and, even in written answers, refused to address questions concerning allegations of obstruction of justice. I say “might,” but Mueller actually
did point all these things out in his report. Ignoring this reflects an astonishing conception of cooperation from the nation’s top prosecutor.
5.
Fifth, it is on the collective back of these prior misrepresentations that Barr rests his particularly generous interpretation of intent in considering questions of obstruction. It is hard to read Mueller’s account of the president’s conduct as reflecting chiefly noncorrupt motives. But 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. One might then indeed tend toward forgiving interpretations of the occasional eruption of anger.
One might then find, as Barr did in Mueller’s report, “substantial evidence … that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.” And one might then find that evidence of such “non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.” The trouble is that if you don’t first adopt these conceits, the weight of the evidence Mueller cites on intent really doesn’t push in that direction. It pushes in exactly the opposite direction.
6.
Barr adopts, sixth, a related mode of obfuscation with respect to obstruction, which is to disaggregate all the episodes Mueller considers and view them in isolation from one another. Mueller specifically urged that the pattern of behavior was important. “Although the events we investigated involved discrete acts,” he wrote, “it is important to view the President’s pattern of conduct as a whole. That pattern sheds light on the nature of the President’s acts and the inferences that can be drawn about his intent.”
Indeed, it is very hard to look at Trump’s behavior toward the investigation over two years and not see malign intent. But isolate any specific fact pattern among the 10 Mueller describes, and you can diminish it. Look at any one in isolation, and—particularly if you have Barr’s hard-line views of presidential power—you might see a facially legitimate exercise of that power for which there is a plausible noncorrupt motive to which Mueller has indeed scrupulously nodded. If you miss the forest for the trees, you will miss the deforestation as well.
7.
Finally, Barr conflates Mueller’s decision not to evaluate presidential obstruction with a decision on his part that the evidence is insufficient to find that Trump committed crimes. This is a very important misdirection on Barr’s part, because it allows him to imply not merely that
he does not believe that the president committed crimes, but that Mueller does not, either.
Both at the press conference and in yesterday’s hearing, the attorney general insisted that Mueller had told him that it was not merely the Justice Department’s legal opinion stating that the president could not be indicted that prevented him from concluding that Trump had obstructed justice. “He made it clear that he had not made the determination that there was a crime” but for the opinion, Barr said at the press conference. The implication is that the issue was not just one of legal authority, but that the evidence wasn’t there either.
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.
Why is Barr doing this?
Wittes hypothesizes:
What if Barr actually believes it all? That is, what if he has sufficiently become a creature of the factual ecosystem of Trump’s support that he truly believes that the real problem here was not a president who accepted (noncriminally, of course) assistance from a hostile foreign power during his campaign, lied serially about it, and tried repeatedly to frustrate investigation of his conduct? What if Barr actually believes that closing a criminal case on these matters is the end of the historical conversation, as well as the end of the criminal conversation? What if he is actually untroubled by the substance of what Mueller reported and, like Rudy Giuliani, believes it’s okay for presidential candidates to take “dirt” from foreign governments on their rivals and okay for presidents to call up investigations of those rivals? What if he really believes that the true problem here was the investigators?
In some ways, the only thing scarier than an attorney general who would knowingly and cynically deliver the layers of misinformation Barr has been dishing is one who would do so because he’s all in on a collective delusion.
