Barr v. Mueller: Friends pitted against each other






William Barr

Tensions between Attorney General William Barr and special counsel Robert Mueller are only going to get more pronounced when the two men are summoned to testify separately on Capitol Hill about the turbo-charged Russia investigation. | Patrick Semansky/AP Photo

Legal

Despite close ties, the attorney general and special counsel face increasing scrutiny of their disagreements on the Trump probe.

Bill Barr and Robert Mueller have been close friends for 30 years, from the Justice Department to family weddings and the Bible study attended by both of their wives.

Now they’re anchoring two ends of a legal high-wire act playing out through news conferences, congressional hearings and close-up reviews of the special counsel’s long-awaited findings on Russian interference in the 2016 presidential election.

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The bond between the two men has been stressed over the past month amid a volley of letters and closed-door negotiations among their aides. Finally, on Thursday, the release of Mueller’s final report showcased the large amounts of daylight between the veteran law enforcement officials on fundamental questions at the heart of Donald Trump’s presidency.

“We don’t go through this process just to collect information and throw it out to the public,” Barr said with evident frustration, referring to Mueller’s 448-page report, which failed to make a conclusive finding on whether Trump obstructed justice. “Because the special counsel did not make that decision, we felt the department had to. That was a decision by me and the deputy attorney general.”

Now, the tension between Barr and Mueller is only going to increase when the two men are summoned to testify separately on Capitol Hill about the turbo-charged Russia investigation that consumed Trump’s first two years in office. Democrats are intent on uncovering any evidence that Barr shaded the public disclosure of Mueller’s findings to favor the president who appointed him.

Differences in how the attorney general and special counsel came at the Russia probe and interpret its findings are apparent on many levels.

First there’s the rhetoric. Barr in Thursday’s news conference four times adopted the same “no collusion” mantra that Trump has used obsessively since the Mueller investigation started. It’s language that stands in sharp contrast to Mueller, whose report ticks through a stream of interactions between Trump, his family, aides and allies and Russians interested in cultivating a rookie Republican politician mounting a long-shot bid for the White House.

The only references the special counsel makes to “collusion” come in an attempt to explain how the term is hardly the accurate legal one but instead should be thought of in the context of a conspiracy.

Barr, in his much-criticized news conference, also defended Trump and reiterated his “sincere belief that the investigation was undermining his presidency.” Mueller, by contrast, offered in his report a methodical run-down of all the evidence that his prosecution team unearthed during a nearly two-year investigation, calling out Trump aides for giving misleading testimony and deleting records to block the investigation.

More than anything, though, the contrast between Barr and Mueller centers primarily around whether Trump committed obstruction of justice — and whether the attorney general accurately reflected the special counsel’s views on the subject in his letter to Congress last month and then again Thursday during the press event.

At the news conference, Barr declared that Trump’s White House “fully cooperated” with Mueller’s probe.

Mueller’s report, however, made it clear that Trump himself did not submit to a sit-down interview and, in negotiated written questions, declined to answer questions about obstruction of justice.

While there have been hints for weeks that Barr and Mueller did not see eye-to-eye on the Trump-Russia case, Barr publicly confirmed the disconnect with Mueller at the news conference when Barr said he and Deputy Attorney General Rod Rosenstein “disagreed” with some of the special counsel’s legal theories underlying the obstruction investigation.

Some of the 10 episodes Mueller specifically examined didn’t amount to crimes “as a matter of law,” Barr said.

But Mueller’s report made no findings on Trump’s legal culpability, explaining that the special counsel was adhering to longstanding Justice Department legal opinions that a sitting president could not be indicted. Mueller’s lengthy analysis went on to say that claiming the president obstructed justice without the ability to charge him would taint his presidency and damage his ability to govern — leaving him with no legal recourse to clear his name or protections normally afforded to criminal defendants.

But that series of caveats is notably surrounded by multiple examples of potential obstruction by Trump, including urging Attorney General Jeff Sessions to reverse his decision to recuse himself from overseeing the investigation; pressing then-White House Counsel Don McGahn to fire Mueller; and communicating through back channels his appreciation for loyalty to key investigative targets like Michael Flynn, Paul Manafort and Michael Cohen.

“If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state,” the Mueller report said. “Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. …Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.”

Barr, however, insisted at his news conference that Mueller had “made it very clear several times” that the Justice Department’s guidance on charging a president wasn’t what stopped Mueller from concluding that Trump had committed a crime.

“He was not saying that but for the [Justice Department] opinion, he would have found a crime. He made it clear that he had not made the determination that there was a crime,” Barr explained.

Barr also rejected the idea that Mueller in his report was all along angling to send his findings to Congress for it to consider impeachment proceedings.

“I hope that was not his view, since we don’t convene grand juries and conduct criminal investigations for that purpose.I didn’t talk to him directly about the fact that we were making the decision, but I am told that his reaction to that was that it was my prerogative as attorney general to make that decision,” the attorney general said.

Some former officials who know both Barr and Mueller expressed disappointment Thursday in Barr’s decision to present what they viewed as a skewed version of Mueller’s findings.

“The attorney general only talked about stuff favorable to the president and that struck me as odd and it did strike me as a tactic,” a former U.S. attorney who knows both men, Chuck Rosenberg, said on MSNBC Thursday. “We need to see what Mueller said, not the characterization of what Mueller said by the attorney general. That was a tactic. He did employ it. It’s disappointing to me, but not terribly surprising.”

Barr arguably cast the first stone in the conflict between the two men nearly a year ago by writing an unsolicited 19-page memo, attacking the notion that Trump could be guilty of obstruction of justice for any efforts to end the investigation into potential collusion between the Trump campaign and Russia.

The June 2018 missive sent to Rosenstein argued that the obstruction case against Trump was so weak — and the legal theory for accusing the president of obstruction so flawed — that Mueller’s team should not even be permitted to demand an interview with Trump.

“Mueller’s obstruction theory is fatally misconceived,” Barr declared in his broadside, which he also circulated to more than a dozen other prominent lawyers across Washington. Barr argued that only acts such as witness tampering and destruction of evidence could amount to obstruction by the president, but actions stemming from his constitutional authority to end an investigation or replace its overseer could not.

Barr, who previously served as attorney general in the George H.W. Bush administration, went even further in the memo, contending that if there was no conspiracy between the Trump campaign and Russia, the president could not be guilty of obstruction of justice and therefore Mueller should not be able to press that issue further.

“The president’s motive in removing [FBI Director James] Comey and commenting on [the inquiry into former National Security Adviser Michael] Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion,” the once and future attorney general wrote. “Either the President and his campaign engaged in illegal collusion or they did not … If they did not, then the cover up theory is untenable.”

Mueller’s report appears to reject that conclusion, stating that statutes do not require the existence of an underlying crime to prosecute someone for obstruction of justice.

“I don’t think the Mueller report reflects either the view that public officials cannot obstruct justice through official acts or that obstruction of an investigation into something that isn’t unlawful isn’t obstruction,” said University of Texas law professor Stephen Vladeck, summarizing points Barr made in his 2018 memo. “The contrary, I read the Mueller report as suggesting that both of the opposite things are true … but I do think the report was written with this fight about obstruction in mind, partly because of Barr and partly because that argument about obstruction has been out there a while.”

Barr did acknowledge in his 2018 memo that he did not have all relevant facts about the investigation, which could give him a chance to say his views have evolved or are now more informed. But there was no sign Thursday he plans such a shift. In addition, the legal conclusions he articulated before becoming attorney general were so sweeping that they seemed to dismiss thousands of hours of work Mueller’s team had invested in their inquiry.

During Barr’s confirmation hearing in January, he didn’t shy away from talking about his personal relationship with Mueller — a sore spot with Trump considering the president had been firing direct Twitter broadsides at the special counsel for months.

In his testimony, Barr said he and his wife were close to Mueller and his wife. Barr added that when he met with Trump briefly in 2017 about possibly becoming a personal lawyer for the president, Trump asked about his relationship with Mueller, and Barr replied that he and his wife “would be good friends” with the Muellers long after the probe concluded.

Despite that exchange, Barr’s talk at the confirmation hearing about his friendship with Mueller startled Trump as he watched the session on TV, CNN reported.

At the Senate hearing, Barr also seemed to downplay his June 2018 memo, saying it didn’t challenge Mueller’s “core investigation.” The then-nominee also went on to say he wouldn’t rule out subpoenaing Trump before a grand jury if Mueller asked to do so.

“I don’t know what the facts are,” Barr said then. “If there was a factual basis for doing it and I couldn’t say that it violated established policies, then I wouldn’t interfere, but I don’t know what the facts are.”

But there have been clear indications in recent weeks of more distance between Barr and Mueller than what one might expect given their professional and personal history.

Mueller was notably absent from Barr’s announcement Thursday. Instead, the attorney general was flanked by Rosenstein and an aide who helped oversee Mueller’s probe, Ed O’Callaghan. Peter Carr, a spokesman for Mueller, declined comment when asked whether the special counsel had even been invited to the event.

At the news conference, Barr said he and Mueller had not spoken about the attorney general’s decision to issue a public conclusion that Trump wasn’t guilty of a crime, even though Mueller explicitly refrained from making such a declaration.

“I didn’t talk to him directly about the fact that we were making the decision, but I am told that his reaction to that was that it was my prerogative as attorney general to make that decision,” Barr said.

A Justice Department official who spoke on background said there had been little contact between the two men in the past two months. The only direct interaction Barr mentioned was on March 5, when Mueller gave the new attorney general an update on the special counsel investigation. Mueller informed Barr and Rosenstein that he planned to close the investigation without resolving whether Trump obstructed justice, the official said.

“Barr and Rod were both surprised,” the official said. “It was unexpected.”

On Capitol Hill, the hearings on the Mueller report seems unlikely to produce a face-to-face confrontation between the attorney general and the special counsel. Still, Democrats are likely to zero in on whether Barr mischaracterized Mueller’s finding when the attorney general comes to Capitol Hill for back-to-back Senate and House hearings set for May 1 and May 2.

House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) leapt on the differences between Mueller and Barr, noting that the special counsel’s report said a “thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would have risen to personal and political concerns.”

But Barr “excluded this critical finding from his version of events,” said the New York Democrat, who on Thursday sent a letter to Mueller inviting him to testify by May 23.

For his part, Barr said Thursday he had no objection to Mueller appearing before lawmakers. Mueller’s spokesman declined comment when asked whether the special counsel — who assiduously shunned the spotlight during his nearly two-year tenure — plans to accept Nadler’s invitation to testify.

One way for the Trump team to try to defuse or smooth over any tension between the two men may be to suggest that Mueller’s report is not as much the definitive view of the former FBI director as a compendium of the conclusions of his aides — the hard-charging prosecutors Trump has branded as “13 Angry Democrats.”

One prominent lawyer close to Trump and Barr took that tack Thursday, saying that during Mueller’s tenure at the Justice Department he had a reputation for allowing his staff more leeway in drafting official memos and legal documents than other senior officials did.

“Mueller doesn’t always control the pen as heavily as other officials might,” said the attorney, who said some lines in the report seemed “a little out of character” for the veteran prosecutor and ex-FBI chief.

“I just assume some people on his team felt strongly and he wasn’t going to take them out,” added the Trump adviser, who requested anonymity.

Rudy Giuliani, one of the president’s personal attorneys, said one difference he can see between Mueller and Barr centers on “how do you legally assess or interpret the situations that are alleged to be obstruction?”

“And I think that Barr has the classic approach to obstruction and I think some of Mueller’s staff have a much more expansive notion of it, which they may actually believe or they may be contorting because they’re pretty desperate to get the president,” the former mayor of New York said.

Glenn Kirschner, who worked as a homicide prosecutor under Mueller in the U.S. attorney’s office in Washington D.C., predicted that the special counsel would eventually spell out his differences with Barr before Congress.

“Mueller is not the kind of guy who is going to stand up at a press conference and disagree with the attorney general. He’s going to wait. He’s going to bide his time,” Kirschner said. “He will not let injustice stand. … He’ll set the record straight. All things in time.”

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