On Friday, Attorney General William Barr sent a new letter to Congress, and it bore a markedly different tone from his first letter.
I have written a series of articles analyzing Barr’s first letter, and Mueller’s methods as a prosecutor, positing that Barr’s notification did not say that Mueller had cleared the Trump campaign of collusion, and that in fact it strongly implied that Mueller had referred out to other federal prosecutors all the cases ‘on the substance’, that is, Trump Russia collusion, as he found them to other federal prosecutors. Two subsequent developments have boosted my analysis, which ran exactly opposite to what the mainstream media was reporting.
The first is that a prosecutor in the ‘mystery witness case’ told the judge that the ‘Mueller Grand Jury’ was “continuing robustly”. Some media reports characterized that as meaning that the Grand Jury was continuing to ‘tighten up loose ends’. That is certainly the news media’s understanding of the matter – that whatever indictments may come now against Americans, they cannot be on the substance. And, of course, that take may be accurate. But ‘continuing robustly’ is an odd turn of phrase for a prosecutor in such circumstances. one would be more likely to simply say ‘Yes, Your Honor’ when asked by the judge if the case was continuing.
The second development is AG Barr’s new letter. I will first analyze some of the text and then turn to whether Barr is a ‘white hat’ or a ‘black hat’ as the social media chatter likes to have it.
As we have discussed, I share your desire to ensure that Congress and the public have the opportunity to read the Special Counsel’s report. We are preparing the report for release, making the redactions that are required. The Special Counsel is assisting us in this process.
With ‘As we have discussed‘, Barr reminds Graham and Nadler, but presumably mostly Nadler, that he has assured them he wants to get the report released. He is also defending himself in telling the public that he has not walled himself away but has been speaking to Democrats, including Nadler. ‘We are preparing’ means ‘we are not sitting around; we are getting it done.’ ‘Redactions that are required’ uses the strong word ‘required’, implying ‘in law, by the USIC’. If Barr had wished to be slimier, he would have said something like ‘making the appropriate redactions’. He uses the word ‘required’ to say ‘these are ones that we MUST make.’ The choice of ‘redactions that are required‘ may also be seen as a rebuke to Democrats and their allies who want to assert that no redactions are required at all. They are, of course, and most Democratic lawmakers qualify their calls for the ‘full unredacted report’ with ‘apart from those absolutely necessary for national security’ but that’s not what makes the soundbite. ‘The Special Counsel is assisting us‘ is another defensive phrase, reminding Democrats that Mueller, whom they have lionized, is part of the redaction effort.
The Most Important Paragraph
Specifically, we are well along in the process of identifying and redacting the following: (1) material subject to Federal Rule of Criminal Procedure 6(e) that by law cannot be made public; (2) material the intelligence community identifies as potentially compromising sensitive sources and methods; (3) material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices; and (4) information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.
I am going to leave the longest section in bold here for last, as it carries the largest clue to the future of the report and any further indictments, including those I have exclusively reported exist on Trump’s three eldest children.
“Specifically” means ‘I know you guys are calling BS, so I am getting granular with you. I am not going to make vague references to redactions to help Trump; only stuff in these categories of material are left out.’ ‘Well along’ means ‘we are hustling, we are not covering this up.’ Barr then lists the categories, with 1. being Grand Jury material. Some anti-Trump commentators have taken this to mean that Barr is using an excuse to engage in a cover-up. Maybe; but maybe not.
In fact, Barr does not say anywhere here that he plans to claim that all Grand Jury material cannot be made public. He says he will not release material that, under the cited rule, can’t be made public. For example, while Barr might petition a judge to release all the Grand Jury material, a judge might say “no” to releasing some of those records. In that case, it would indeed be unlawful to release them. There are plenty of other reasons that some Grand Jury material might not be lawful to release. I would suggest that not only Mr. Hogan, but many mainstream publications, interpreted this line wrongly to make it read as though Barr had said he intended to redact all Grand Jury material.
Again, that’s possible. But every basic law school graduate knows that you can release Grand Jury material with a judge’s order, so why would Barr make a fool of himself and just blankly misstate the law?
Next, we get to category 2. ‘material the intelligence community identifies’ means “I will not decide what is sensitive and can’t be included on natsec grounds, the IC will decide that. So take those redactions up with them, fellas.” Barr is defensively punting. Also, to be fair to him, it must be right that the intelligence community says what materials cannot be published on intelligence grounds. Barr has not the competence or authority to make that decision. Lastly, we get to another sentence that has caused many of my Democratic friends tsuris; the idea of privacy redactions. But Barr here uses the word “peripheral”. Again, this is, like “required”, above, an emphatic word. Barr is not concerned, he’s telling Democrats, with the privacy of the likes of Michael Caputo or Jack Posobiec; he is only looking to protect the privacy of “peripheral”, that is, truly uninvolved, third parties. For example, Mueller indicted the Internet Research Agency and his indictment referred to ‘unwitting’ Americans who had helped Russian trolls. If Mueller has determined that such folks are ‘unwitting’, then they are ‘peripheral’ third parties.
The Most Important Clause
Barr says the material he and Mueller are working to redact includes:
(3) material that could affect other ongoing matters, including those that the Special Counsel has referred to other Department offices;
As you might imagine, your correspondent was extremely pleased to see this clause, or category, in Barr’s new letter, because it supports all our other reporting and analysis of the first Barr letter, and of Mueller’s methods.
In the first letter, Barr wrote “During the course of his investigation, the Special Counsel also referred several matters to other offices for further action.” However, the past tense of ‘referred’ was misread (I believe) by most commentators as implying that all of this was over; that nothing more than ‘tidying up’ could be forthcoming, or even that all the referred matters, such as Michael Cohen and Stormy Daniels, were known about.
Here, however, we have a beautiful confirmation here that the cases that the Special Counsel has referred onwards are not just the ones we know about – they are ongoing. Furthermore, this clause needs to be viewed in context that most reporters seem to have missed. Barr is saying that material, that would otherwise be included in the Special Counsel’s Report on Russian Interference and the Trump Campaign needs redacting so as not to affect these ongoing cases.
All too often, I believe, the news media cannot see the wood for the trees. They focus on categories of redactions. Fine. But take a step back. Redactions from what? Well, redactions from Mueller’s report that is going to Congress and the American people on the substance. The substance of Russian interference in the 2016 election; the substance as to whether or not Trump’s team colluded.
If the “ongoing matters” were, as so many – in fact all – journalists in the United States and across the world have asserted, peripheral, side issues, “loose ends”, then why on earth would Mueller and Barr have to work to redact material from the report that might affect these ongoing cases?
This report is not about peripheral matters. Will it include lengthy passages on Michael Cohen, Stormy Daniels and the Trump payoff? That’s got nothing to do with Russia interfering in the election, nothing to do with collusion. I would be very surprised if we saw any reference to it in Mueller’s report. But the report, on the substance, lists as a main category of necessary redaction, “ongoing matters” referred by Mueller to other federal offices.
That surely must mean that the matters which Mueller has referred to other federal offices are – as I have argued – not ‘peripheral’, to borrow Barr’s other word, but are key, are on the substance, and are ongoing. Categories 2 and 3 are likely to bring us the greatest amount of redacted material, I believe, and that is not necessarily a bad thing.
Is Bill Barr a black hat, or a white hat? Well, the glorious thing is that it doesn’t really matter. His letters mean what I said they mean, at least grammatically. The latest letter is a ‘backtrack’, or a correction. Either Mr. Barr, as a white hat, is stung by the media’s terrible misreading of his first letter, or, as a black hat, has been strongly encouraged by the good guys to correct the misleading impression his technically accurate first letter produced. However, we will explore that question in a future piece, as this one is far too long already. The most important takeaway is that Barr says that the main report must be redacted so that ongoing cases referred by Mueller elsewhere won’t be affected.
Don Jr, Ivanka Trump, Eric Trump and Jared Kushner – put down the champagne and call your lawyers.
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