Barr’s Letter Raises More Questions Than It Answers

On Friday, Special Counsel Robert Mueller delivered his report to Attorney General William Barr. By Sunday, Barr had written a letter to Congress summarizing what he referred to as Mueller’s “principal conclusions.” Trump and his enablers immediately claimed that he had been fully exonerated and the president called for an investigation of the investigators themselves, suggesting that they were part of an “illegal takedown that failed.”

But the truth is that Barr’s letter actually raised more questions than it answered. He reported that, as charged, Mueller investigated Russia’s effort to influence the 2016 and highlighted two areas: (1) the social media campaign waged by the Internet Research Agency (IRA), and (2) the hacking and dissemination of DNC and Clinton campaign emails.

By comparing what was included in the Mueller indictments to what Barr wrote in his letter, we begin to get an idea of the spin the attorney general is attempting to put on the findings of the special counsel. Barr wrote that the IRA conducted “disinformation and social media operations in the United States designed to sow social discord, eventually with the aim of interfering with the election.”

Mueller was much more specific in his description: “Defendants posted derogatory information about a number of candidates and by early to mid-2016, Defendants’ operation included supporting the presidential campaign of then-candidate Donald J. Trump (“Trump campaign”) and disparaging Hillary Clinton.” According to the indictments, the social media campaign shifted into sowing discord more generally after the election.

It was in describing those two very specific attempts by Russia to influence the election where Barr reports that Mueller “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government.”

The questions raised by that conclusion were identified by a group of writers at Lawfare.

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.

First of all, the bar set for collusion or coordination was what could be proven in a court of law “beyond a reasonable doubt.” As the Lawfare writers demonstrate, the details of Mueller’s report might include evidence of collusion or coordination, but could fall short of such a high standard.

But it is their allusion to the Moscow Tower project that demonstrates the most important question left unanswered by Barr’s letter. Addressing the issue of whether or not the Trump campaign colluded with Russia on their social media campaign or in their hacking of emails doesn’t get to the issue of whether Moscow had attempted to recruit the current president of the United States over a period of years and whether he was compromised by his engagement with them on many levels.

Barr’s letter is silent about the fact that, in his business dealings, Donald Trump had come to rely on money laundered through Russian oligarchs into his properties. It is also silent about the fact that the Trump organization was negotiating with the Russians about Trump Tower Moscow throughout the presidential campaign, as well as the fact that they lied about it and Putin knew they were lying.

So on the question of whether or not Trump has been acting as an asset of a foreign government, Barr writes nothing. What we don’t know is whether Mueller addressed the outcome of a counterintelligence investigation into that question or if it is one of several that Barr suggests has been referred to other offices by the special counsel.

Martin Lederman addressed the importance of answering those questions.

Does Trump have financial obligations to Russian interests? Was he — and does he continue to be — motivated by the prospects of a Moscow Trump Tower? Does Russian intelligence have kompromat on Trump that makes him susceptible to undue influence? Or is there a more benign explanation?

The counterintelligence investigation’s answers to these and similar questions — especially its possible assessment of the president’s capacity to address the foreign threat — are of far greater current importance to the functioning of our government than determining whether Trump’s deeply inappropriate conduct in 2016-2017 violated any particular criminal statutes.

The second part of Barr’s letter addresses what Mueller reported on his investigation about whether Trump attempted to obstruct justice. He notes that the report “sets out evidence on both sides of the question,” but “determined not to make a traditional prosecutorial judgement.” He quotes the special counsel’s statement that, “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

This is the portion of Barr’s letter that has received the most attention, because he goes on to announce that he and Rod Rosenstein have concluded that the evidence “is not sufficient to establish that the President committed an obstruction-of-justice offense.” Former federal prosecutor Ken White writes that “this conclusion reflects startling and unseemly haste for such a historic matter.”

Crucially, we don’t know whether Barr concluded that the president didn’t obstruct justice or that he couldn’t obstruct justice. Well before his appointment, Barr wrote an unsolicited memo to Rosenstein arguing that Mueller’s investigation was “fatally misconceived,” to the extent that it was premised on Trump firing former FBI Director James Comey or trying to persuade Comey to drop the investigation of Michael Flynn, Trump’s first national-security adviser. Barr’s memo was a forceful exposition of the legal argument that the president cannot obstruct justice by exercising certain core powers such as hiring or firing staff or directing the course of executive-branch investigations. So although Barr’s letter to Congress says that he and Rosenstein found no actions that constituted “obstructive conduct” undertaken with the requisite corrupt intent, we don’t know whether he means that Trump didn’t try to interfere with an investigation, or that even if he did, it wasn’t obstruction for a president to do so. Democrats in Congress will want to probe that distinction—as they should.

Those are just some of the questions raised by Barr’s letter. Given the nature and scope of what we still don’t know, it is difficult to avoid concluding that the attorney general is doing the job Trump hired him to do. It is also why the message from Democrats is unanimous: the entire Mueller report must be released.

That is clearly the next battle to be waged. There is no lack of irony in the fact that the author of the infamous “Starr Report,” has written that, because Mueller was appointed under a different authority, his report cannot be released publicly. But Neal Katyal, who helped draft the regulations governing the special counsel, disagrees.

The public has every right to see Robert S. Mueller III’s conclusions. Absolutely nothing in the law or the regulations prevents the report from becoming public. Indeed, the relevant sources of law give Attorney General P. William Barr all the latitude in the world to make it public.

Given that Barr’s letter raises more questions than it answers, it is now more imperative than ever that the Mueller report be released.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.