by Chris “Cal” Carnahan
Sometimes Good Guys Don’t Wear White
On Sunday afternoon March 24, 2019, Attorney General William Barr released a short four page summary letter summarizing his conclusions about Special Counsel Robert Mueller’s exhaustive report into Russia’s interference in the 2016 Presidential Election. Barr’s letter was greeted with shock by many of those who believed that he was going to reveal coordination between President Trump’s campaign and Russia. He did not. His brief summary was hailed as a total exoneration by the White House. For many information starved writers and the public in general seeking to vanquish a would-be autocrat or to vindicate a strong-man champion the desire to parse every word of Barr’s brief letter in an attempt to understand as much as possible about Mueller’s underlying report was insatiable. Hot takes, partisan press releases, editorials and explainers proliferated almost immediately.
I break my analysis into multiple parts. First, I will examine Barr’s history with the CIA and as Attorney General for President George H.W. Bush. Those segments of Barr’s work history are currently being used as evidence that he is now acting with bad intent. I will also look at additional criticisms as well, and examine the desire for speed relating to the release of the full Mueller report. Next, I parse Barr’s principled conclusion letter (summary) in the context framed by the notification to congress he sent hours after Special Counsel Mueller delivered his final report. In this section I will closely focus on the variations relating to who Barr references as targets of the investigation. In the following sections I examine how this letter was critically received focusing on the most damaging criticisms. I look at ideas posed by some attempting to make sense of Barr’s summary with regards to information in the public record. I will focus briefly on the debate over redactions. Finally I look at the difference between an investigators view, an attorney general’s view, and a long term constitutional view before engaging in a final analysis and conclusion.
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My goal here is to differentiate between political difference, legal malfeasance, and nefarious intent. We can expect the Attorney General to fight to secure executive power, we can expect him to defend the office of the president as opposed to the man, and we can expect him to defend any president with regards to the lawful use of the powers granted to the office as he understands them. We can expect a level of partisanship with regards to policy and resource prioritization. However, if we want to depolarize our politics, we can and indeed must avoid attributing nefarious intent to conscientious civil servants doing their duty in suboptimal situations. There is a fundamental difference in stance, a difference between questioning Barr’s actions assuming neutral or partisan motives versus assuming intent to engage in criminal activity without solid evidence and using that assumption as a guide to draw conclusions about actions. The latter leads to fractured politics and should be avoided when possible. That brings us back to the title, is Attorney General William Barr a white hat?
Was Barr’s decision to write a very short letter summarizing the conclusions of Mueller’s report while working towards a more complete release indicative of a coverup or a good faith discretionary choice in a matter of grave national import? On this score, Barr was attacked from many angles. One of the key lines of attack is grounded in Barr’s prior history prior history including his time at the CIA, advising President Reagan, and as Attorney General for President Bush. This history is used as evidence that his current summary letter was part of a coverup. But this line of attack is at best demonstrates the partisanship of a much younger and less experienced civil servant, not bad intent. It fails to take into consideration Barr’s ethical obligations as an attorney or his specific role to protect the constitution by informing his actions with broad view of both history and of executive power.
Long before any of his alleged coverups took place Barr worked for the CIA beginning as an intern in 1971, then an intelligence analyst in 1973. In 1975 he transferred to the CIA’s office of legislative counsel where his worked included acting as a liaison between the agency and congress during the period of time when two special committee investigations into intelligence abuses were ongoing and that produced transformative reports. It’s not difficult to imagine the key experiences he must have gained during those formative years in terms of understanding congressional politics, of the checks and balances involved in the struggle between the executive and the legislative branches of our government, and of the enormity of the threats facing America during the Vietnam War while also in the middle of the Cold War. He worked for an agency tasked with countering the threats of communist governments in both China and Russia, threats he would see play out through Russia’s attempted expansion into Central America during the Cold War and its continued threat after the implosion of the Soviet Union. Threats he would see play out in China’s support for a communist takeover in Vietnam. As a trained analyst he had direct knowledge of Russia’s basic tactics and capabilities. As a legislative liaison during a period where congress was investigating the executive branch, he had a parallel understanding of the weaknesses in our own constitutional republic – weaknesses that could be exploited by savvy hostile actors.
Presidents Reagan and Bush
It is within the context of the former CIA employee who supported intelligence operations in the ongoing spy wars between the US and the former Soviet Union that we should understand his role in fighting for executive power. Such a fight, spanning multiple presidential administrations is not a fight for a particular president or party. It’s a fight for the office of the president. To do otherwise results in contradictions. For example, is problematic to view Barr as pro-Russian espionage or pro-coverup given his CIA history and work for both President’s Reagan and Bush. A more consistent interpretation of his legal advice during that period is to see it in the light of the struggle between executive and congressional power. In this light his role was to fight for America by aiding both Reagan and Bush’s negotiate legal issues that resulted from the use of executive power related to their ongoing broader efforts to rescue hostages and open dialogue with Iran, contain Russian influence in Central America during the Cold War, negotiate with Russia to end the Cold War, and to reduce nuclear arms and protect national security related interests with regard to American oil investments in the Middle East. From another angle, nothing in his advice during either administration indicates he sought anything further than a preservation of the executive power to quickly or creatively act against perceived, intelligence validated threats, or to act on diplomatic opportunities – all by way of the tools lawfully available to the executive branch.
In both cases it is irrelevant whether or not the presidents knew or came to know that actions by their subordinates were illegal. Barr was only advising on the actions the presidents could lawfully take. Further, it is equally clear with the benefit of hindsight that while possibly the product of poor judgment or bad intelligence that both presidents believed that any illegal actions were done in defense of America and American interests as they saw them at the time they engaged in them and with the information they had available to them. Barr advised pardons. He also pushed back at congressional efforts to obtain executive material. Both are legitimate use of executive power. Barr’s defense of the office preserved the power of the executive branch for future generations that might find themselves similarly situated regardless of party or of politics.
Presently it would be absurd to suggest that either Attorney General Barr or Special Counsel Mueller are under any illusions as to Russia’s capacity for subversion nor have they ever shown any love for Russian influence and espionage operations. To claim that a man with Barr’s history is helping coverup Russian subversion of America without any evidence contrary to his history of fighting against Russia is not plausible. The accusations of coverup are partisan in origin and partisan in current application. That’s fine but one can completely disagree with the politics or whether the pardon power should be modified with a constitutional amendment without attributing nefarious intent to the attorney who advises the president with regards to the legality of specific courses of action. It might help to flip party affiliation in order to gain a different understanding of what Barr advised Bush and Reagan. We can do that by creating a hypothetical situation connected to real life events.
Osama Bin Laden – A Hypothetical
If we want good and conscientious presidents to have the power to protect the country on short notice, it is necessary to fight for that power in more problematic situations. We’ve seen how an attorney fighting for the office advised in controversial situations. Let’s see how that might play out in a far less controversial situation.
On May 1st, 2011 President Barack Obama announced to the world the death of Osama Bin Laden. Were President Obama’s actions legal? More broadly, was the policy of targeted killing under President Obama’s administration legal? My point here is not to reiterate the legal arguments on both sides. If one follows the hyperlinks one can see that not only did President Obama seek legal counsel regarding these operations, but that there was opposition and push-back. Reasonable legal scholars can and did find that President Obama’s actions against Osama Bin Laden were illegal in a variety of respects. Should congress have tasked a special prosecutor to investigate?
The Republican controlled congress could easily have appointed a special counsel to dog the remainder of President Obama’s first term and even recommended impeachment but investigating the Navy SEALs and the members of the Night Stalkers for killing America’s number one enemy would have been politically suicidal for the GOP. Nonetheless – in this hypothetically, President Obama not only benefitted from the advice of his own attorneys but could have theoretically benefitted from AG Barr’s advice regarding pardons just as President Bush did. Had congress chosen to go after the Navy SEALs, the Night Stalkers, or any of their commanders in an attempt to take down President Obama, no one would have batted an eye if Obama had pardoned them. The ability to act quickly without the benefit of extensive legal analysis is one we should want from any president regardless of party particularly since the Supreme Court does not issue advisory opinions.
Applying past actions to present circumstances
With regards to Barr’s past it is important to take a step back from current politics as terrible as they may be and look at the broader implications. It’s helpful to adopt both a long view and a birds eye view of the office of the Attorney General, the office of the president. We should also keep in mind that attorneys have an ethical duty to zealously represent those offices in defense of the Constitution. From this view it’s clear that whether one agrees with Barr’s expansive view of executive power that it is both arguably justified in key moments of our national history and that his position fully comports with the rule of law as made explicit by the US Constitution. If one is looking to call Barr a bad actor based on his role as an attorney defending the office of the president in times of national crisis one will not find a solid basis to do so. It is important to understand that Barr knew of the perils he faced as well.
Barr’s unsolicited letter regarding obstruction
On June 8, 2018, Barr, then in private practice drafted a memorandum analyzing Federal Law governing obstruction of justice focusing on the specific issue of whether a sitting president engaged in lawful activity can be prosecuted by the executive branch for obstructing justice. He concluded that a president could not. He examines two specific acts by the president alleged at the time in the media to be the basis for potential obstruction charges: President Trump’s firing of Director Comey, and his public comments with regards to General Flynn’s innocence or leniency that the president felt should be applied.
I’m not going to go into the minutiae of his argument here. The basic gist of Barr’s argument is that the Constitution grants the president plenary power over law enforcement. It is a duty the president cannot recuse from without abandoning the branch altogether. Barr does not argue that a president can engage in illegal acts such as witness tampering with the intent of exonerating himself from crimes, he argues that presidents can engage in facially lawful acts with regards to law enforcement issues that touch their personal conduct because they have ultimate discretion over how to proceed with executive branch law enforcement. If a president is charged with an underlying crime, federal obstruction charges are a “side-show”. If he is not charged with the underlying crime, neither the plain reading of the obstruction statute in question, 18 U.S.C. §1512, the legislative history, its application, nor DOJ policy suggests that the mere intent behind facially lawful activity such as firing Directory Comey or commenting on Gen. Flynn’s case is sufficient to fall within the purview of the statue. Barr’s memorandum is limited to a very small subset of acts where the executive engages in Constitutionally lawful acts absent an underlying crime and as a result cannot be charged with obstruction. But that does not place the president above the law. He may still be impeached. He may still be charged with the underlying crimes. He may still be voted out.
The weakness in Barr’s argument is evident when one asks: how can underlying crimes can be investigated if the president can lawfully pardon targets, call for lenient sentences, or fire the chief investigator. The answer again goes back congress. Congress has the power to investigate and punish the president. This is an extremely conservative view. It is the subject of debate amongst legal scholars, but it is not far outside the mainstream nor does it lack foundation in reason or constitutional jurisprudence. In short, one hopes that maintaining a conservative or legal view of constitutional jurisprudence is not grounds for attacking one’s character.
Barr’s memorandum has been characterized as an audition of sorts to regain his role as Attorney General in a last ditch attempt to cling to power. It has been criticized as a baseless argument along the path of placing President Trump above the law. It has been used to justify claims that the Attorney General is actually the Coverup-General, a term first used against him by New York Times journalist William Safire in the New York Times decades ago. The fact that Barr chose to draft that memorandum was the subject of intense questioning by Senate Democrats during his confirmation hearing. Yet all of these criticisms demonstrate is that he has an extremely conservative view of the Constitution, legitimate grounds for debate but nothing suggests he’s a bad actor. Barr expressly states that his analysis is limited solely to obstruction based on legal action by a president using his plenary authority over law enforcement where no underlying crime is charged. Moreover he states early on in his memorandum that obstruction charges related to Nixon were proper.
Senator Harris – A hypothetical
One of Barr’s main concern expressed in this memorandum was that it could create a situation where any lawful exercise of prosecutorial discretion could become the subject of criminal prosecution. Let’s look at another hypothetical created out of a real world situation. On April 8, 2019 CNN ran a story about a situation where Senator Kamala Harris, acting as a California district attorney and declined to seek the death penalty against a man who killed a San Francisco police officer. The CNN report was criticized almost immediately as a hit piece. How might this play out under the broad view of obstruction that Attorney General Barr argued against in his memorandum?
For purposes of this exercise I change Harris’ position from state district attorney to a federal US attorney. We’ll leave the rest of the facts the same. According to the linked CNN report, Harris exercise of her discretion was attacked by no less than United States Senator Feinstein at the time who opined that the case fell within the law regarding the death penalty and that it should be pursued. Harris’ intent was criticized as at best being weak with innuendo about corrupt intent based on political motivations. Under the broad reading of obstruction, she could have been the subject of a criminal investigation based on her intent without any proof of an underlying crime – one could in effect simply make a criminal accusation, and even if the accusation was groundless a prosecutor could still be prosecuted for exercising her discretion. But this, as Barr rightly argues is untenable. It would essentially destroy prosecutorial discretion.
Flipping the script in the memorandum
Barr’s memorandum, read in the proper light, is meant to both separate and protect the Department of Justice from politics and to protect executive power from diminution. In addition, I read it as a way to protect Mueller’s investigation from having any potential charges overturned by the courts. Barr’s memorandum is basically what any high level criminal defense attorney would argue were the president to be charged with obstruction. The fact that it is a legally sound argument founded in conservative jurisprudence means that it is likely to appeal to five of the nine Supreme Court justices. The worst case scenario is not that Barr cleared the president, it’s if the Supreme Court does.
There is scant evidence that he and Deputy Attorney General Rod Rosenstein relied on this memorandum to justify their conclusion regarding the fact that both men found insufficient evidence to prosecute President Trump for obstructing justice with regards to a potential conspiracy on the part of members of his campaign to work with the Russian Government to hack and disseminate Democratic e-mail and personal information. One can however infer that at least Barr had his arguments in mind when he made his decision. His memorandum refers to corrupt intent. Yet even if he did consciously or unconsciously rely on his arguments, his memorandum is the exact opposite of bad action on Barr’s part. I will analyze Barr and Rosenstein’s conclusion further in two places below first in regards to Barr’s summary letter directly, second in regards to its context the broader ongoing investigations.
Conclusion regarding Barr’s take on obstruction in practice
On a final note, in testimony before congress Barr was clear that information regarding obstruction would not redacted from the release of Mueller’s report. The public will be able to read the underlying evidence. Barr is not trying to coverup anything. He’s not obstructing anything with regards to his analysis. No doubt there will be criticism over his decision, but such criticism will be with regards to his and Deputy Attorney General Rosenstein’s judgment, not with regards to any nefarious intent. If his judgment is wrong, congress will have all the evidence that they need to impeach the president.
The psychological need for speed
Another of the key issues driving concern over the release of the report is the perceived or real damage that the president is doing to our norms, laws, and international relationships. Many in the president’s cabinet are under investigation for various acts of corruption. Some positions are not filled by Senate confirmed leaders and the administration has shown no interest in solving these issues in a timely manner that respects the rule of law and strengthens our relationships with our allies. Moreover, he may be financially beholden to hostile foreign countries and pose a grave threat to American national security. The only way to right all of these wrongs is to impeach the president. For two years from 2016 to 2018 the Republican controlled congress appears to have side-stepped their oversight duties. I assumed that during this period that Mueller was taking up the slack left by congress. I assume still that bad information contained in Mueller’s report will change the political landscape and make it easier to impeach the president or at the very least to craft laws protecting against bad acts by those who may hold the office in the future. As a result of these assumptions I feel as though any delay in obtaining information in the report is a delay inviting further attacks on our national security and preventing congress from protecting against future abuse. I know I’m not alone in these emotions. Indeed some fear Barr’s summary is part of an overarching goal on the right to turn America into an autocracy.
The president and his camp put further psychological stress on those attempting to understand Barr’s actions. The claims of exoneration and the expression of a vindictive desire to attack Democrats and journalists who covered any aspect of Mueller’s investigation were unnerving and disheartening. But does anyone believe Trump would not have claimed vindication under any circumstances or that he would have foregone attacking the press? He attacked Mueller’s investigation hundreds of times on Twitter alone. Barr’s memo didn’t cause the situation. In fact it deflected Trump’s attacks from the actual Mueller report for a time. Barr became the target for the left and the source of unfounded optimism from the presidents camp.
Nonetheless, if one don’t feel this urgency to halt at least some of President Trump’s abuses it’s likely you’re either tuned out of politics or one unquestioningly supports the president. Those emotions are legitimate, real and in some cases devastating. In terms of politics the frustration may well cause voters to drop out political participation all together. However, are these emotions sufficient grounds for attacking Barr for not releasing Mueller’s report immediately?
Speaker of the House Nancy Pelosi is on record opposing impeachment. Her stated reasoning is that impeachment is incredibly divisive and we need to start to depolarize, “He’s just not worth it”, she says. She hedges her position by claiming that if – if something terrible comes out in the Barr memo congress will revisit this issue. It’s unclear what she would consider impeachable if violations of the Constitution’s emoluments clause or abuse of the security clearance process or the president’s own stated grounds for locking someone up – use of non-secure e-mail which was used by his daughter and son-in-law while in the White House are insufficient. In one sense she’s right. If the Senate will not convict, the cost benefit analysis weights against impeachment, divisive polarization and the potential that it will result in unnecessary Democratic losses in the 2020 election are huge costs.
There are counter-arguments. The one I find most persuasive does not rely on the Senate. It’s irrelevant whether the Senate will convict or I’d add what comes out of the Mueller report. The House has a duty to follow the law. Impeachment in the House even without conviction in the Senate would a strong message to future presidents that Trump’s level of incompetence and corruption will not be tolerated. It would negatively set him apart in history from all but a couple of past presidents. And it would shows strength on behalf of the House Democratic majority against corruption and for the rule of law. However none of this relates to Barr’s timing on the release of Mueller’s report for two reasons.
“To delay justice is.injustice,” writes William Penn. However, as argued above there are already grounds to impeach President Trump in addition to the emoluments clauses and the presidents abuse of power particularly with regards to the security clearance process. Clear evidence in the public record that he abused his power to curtail the investigation into his own campaign is just one more reason to impeach him. While Mueller’s report may provide additional grounds or evidence, the Democratically controlled House has what it needs to impeach the president and has chosen not to act. So far there is no reason to believe that reticence in the House will change. Therefore, the only ones delaying justice are members of the US House of Representatives based on political calculations, and Senate Republicans for the same reason but geared towards a different outcome. As such, impeachment would at best be a symbolic and precedent setting act by the House which is important but which does not require speed nor does it satisfy the desire for justice.
Finally, Barr testified that the Special Counsel regulation written during the Clinton administration in the wake of the unnecessary publication of vast amounts of personal, private, and embarrassing information in the Star Report was an attempt to protect the privacy of those in future Special Counsel reports. He noted that while the regulation does not require him to provide the full report, in his discretion he decided that it was important to have the full report minus redactions. He further stated that the report would be ready within a week. There will be disputes based on the redactions. That is to be expected. Nonetheless, the fact that he will release a several hundred page report within a month of receipt substantially undermining any argument that he is engaged in a stalling tactic aimed to obstruct congressional oversight of the Trump administration.
A desire for speed while apparently close to universally felt in virtually all of the political anti-trump groups is not a legal or even a political necessity. It’s arguably a moral necessity, and it’s absolutely a personal and psychological necessity for some of us. But while the emotional concern and moral obligations are real and legitimate and the concern over what the president is doing to our norms and relationships and the rule-of-law border on being a duties in themselves they doesn’t translate into solid legal or political arguments against Barr’s tactics nor do they impugn his character.
Barr’s Summary – Who in the World is He Writing About?
Many writers have parsed Barr’s summary. I want to focus on one very specific area: who he included and who he excluded in his references. After explaining the overarching logistics of the investigation Barr separates his own summary into three parts. First, Barr provides a brief overview of the report. He explains that Mueller’s report had two main parts: a sections regarding Russian election interference via propaganda, and a section that regarding Russian hacking computers and disseminating e-mails from Hillary Clinton’s campaign, the Democratic party and affiliates. Barr ends this initial paragraph with a quote from Mueller’s report, “The investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.” [emphasis added]. Pay attention to those words because Barr alters them in three different ways in his summary. Mueller confines his pronouncement to “members of Trump’s campaign” yet even in this initial paragraph Barr adds “or associates” to his own take. Finally Barr adds a third section regarding obstruction of justice to his own summary. The obstruction material according to Barr is found in the second section of Mueller’s report.
US persons who were duped into helping the IRA
Barr paraphrased Mueller’s report regarding alleged coordination with members of the Russian organization known as the Internet Research Agency (IRA) whose primary purpose was to disseminate propaganda aimed to sow discord amongst US citizens. He paraphrases Mueller’s report to say that it did not “any US person or Trump campaign official, or associate conspired or knowingly coordinated with the IRA in its efforts…” [emphasis added] Why add the words “US persons” and the legal term of art “knowingly”? Those words have specific statutory meaning referring to both US citizens as well as foreign individuals legally residing in the United States. It seems likely that he means to reference at least in part unsuspecting social media users who participated in disseminating IRA propaganda or who helped the IRA organize real world protests but that is not entirely clear from the context. Next notice that Barr modifies the word “members” to “official, or associate” again further limiting Mueller’s words to exclude those outside Mr. Trump’s campaign. Were Paul Manafort, Carter Page, Roger Stone, or Michael Cohen “official[s] or associate[s]” after they left the campaign? Finally, notice he limits the conspiracy and coordination to those directly with the IRA. He mentions Wikileaks in a subsequent paragraph – why not here? Was there knowing coordination non-campaign officials or associates such as Paul Manafort sharing internal polling data with non-IRA Konstantin Kilimnick?
US persons who knowingly worked with Guccifer 2.0 to disseminate hacked e-mail
Next, Barr turns to Russian military hacking. He uses interesting language here. He describes those who had their computers hacked as “persons affiliated with the Clinton Campaign and the Democratic Party organizations.” Why didn’t he use “officials” or “associates”? Barr’s use of “affiliated with” here suggest he meant to be very specific when referring to potential targets of the investigation from Trump’s team. He also states that the e-mails were disseminated through “various intermediaries, including Wikileaks.” [Emphasis added]. A number of writers and publications were in direct or indirect contact with Guccifer 2.0 and disseminated information and analysis of hacked material.
Barr acknowledges that Russia uses intermediaries but then limits his conclusion, “the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian Government in these efforts despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.” First, notice Barr adds “or anyone associated with it” to Mueller’s quote. Next he does not include the word “knowingly” as a modifier for coordinated as he did in his paragraph on propaganda. Third, Barr uses the word “affiliated” as with Clinton above suggesting by affiliated he intends to refer to both officials and intermediaries. But it’s striking and strange that he says that the campaign had offers from the affiliates but didn’t coordinate with the government. Did Mueller find coordination between the targets and the affiliates? Fourth, he does not include “US persons” as he did in the propaganda section. Those US persons who interacted with Guccifer 2.0 and disseminated hacked e-mails provided to them by the Russian government should contact their lawyers. Finally, how does Barr or Mueller understand the term campaign? As above do past members such as Roger Stone or Carter Page count? Were they still affiliated? What about George Papadopoulos? Are acts of campaign officials limited to the time they were part of the campaign and before?
Obstruction under severely limited circumstances
Barr’s third section on obstruction of justice is three paragraphs – more space than his entire overview and breakdown of the report and conclusions. In the opening paragraph he provides a summary of an outline of the report. He states that the Special Prosecutor looked at a variety of Mr. Trump’s actions in an attempt to determine whether they constituted obstruction of justice. “Most…have been the subject of public reporting.” He notes that Mueller addressed the obstruction issue in the second section of his report and that he did not, “draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction.” He continues, “Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the president’s actions and intent could be viewed as obstruction” [Emphasis added]. Finally, he quotes the Special Counsel, “”while this report does not conclude that the president committed a crime, it also does not exonerate him.” How many actions were taken by the president? What has not been the subject of public reporting? Why didn’t Mueller draw conclusions? Why did then conclude that the evidence does not exonerate Trump? What other crimes, if any, did Mueller find evidence of obstruction?
Barr’s second and third paragraphs explains that he and Deputy Attorney General Rod Rosenstein drew their own conclusion – that evidence was insufficient to establish that Trump obstructed justice. He writes that his conclusion was not based on his memorandum discussed above. Rather, he again quotes the Special Counsel, “the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,” Barr explains the elements of the crime: acting with corrupt intent, obstructive conduct, and a nexus to pending or contemplated proceedings. Barr does not discuss the evidence. He merely states they did not find all three elements could be proved “beyond a reasonable doubt”. In addition, Barr’s quote is limited solely to election interference. Finally, it seems from the quote attributed to Mueller that he’s grounding his determination on corrupt intent. If so, it’s hard to see how he did not at least have some of the arguments from his memorandum in mind guiding his conclusion. On that issue we are left to speculate for now. Nonetheless, until we have a more complete picture of the full report there is no basis to draw any conclusion with regard to Barr’s intent. The only position he personally takes in this memorandum is consistent with his defense of executive power and inconsistent with corruption.
The Summary Reception of Barr’s Summary Letter
Almost immediately upon release of the letter a number of writers derided Barr as a the president’s man installed to do Trump’s bidding. Though some of those arguments have a rational basis which I will discuss below, I don’t find any particularly compelling as to Barr’s intent or character. Barr has limited ability to assist in a coverup and little incentive to do so beyond his conservativetake on obstruction of justice as it applies to the presidency and an out of the main stream belief in executive power.
Barr’s notification letter: disempowering Trump’s Twitter feed
Stepping back a few days Barr’s summary is framed by his notification to congress that he had received the Special Counsel’s report. In this notification Barr dismantles the president’s attacks on both the Special Counsel and the DOJ. The notification states that there were no instances where the Attorney General or Acting Attorney General found that Mueller’s actions were inappropriate or unwarranted. This is both under-reported and extremely important because it means that Mr. Manafort’s convictions as well as Lieutenant General Flynn’s and Mr. Papadopoulos’s pleas and the rest of the pleas and indictments are not the result of what the president and the Russian propagandists at Sputnik called an out of control “witch hunt” by a gang of “angry Democrats” nor were any of the ongoing prosecutions that were referred to multiple other DOJ offices. His notification negated the arguments put forth by Manafort’s team that Mueller acted outside of his authority. It vindicates that judges who arrived at the same conclusion.
Returning to Barr’s summary letter
As noted above there are still multiple ongoing DOJ, and state investigations. Nothing in Barr’s letter rules out the possibility that the evidence the Special Counsel’s Office (SCO) uncovered with regards to election interference and hacking may by bolstered by ongoing work from other DOJ offices and prosecutors to the extent that it might rise to the level of prosecution at some point. The investigations in many cases always involved multiple offices. His letter was limited to Mueller’s report and really to an extremely limited read of that report. But who was he writing his report for?
My analysis in the following paragraph is purely speculative. Public outcry and congressional pressure were easily foreseeable to anyone and particularly to someone with Barr’s long political history and the decades of attacks on his character. It seems equally clear that while those effects understood that the general public and congressional Democrats were not his primary audience. His primary audience, the one who reacted positively to the letter and the underlying report – at least initially was President Trump. It is likely given the circumstances that Barr sought to placate a deeply insecure and nervous president. Barr knows better than most that the president holds the nuclear codes. He knows that Trump has the power to cause all manner of chaos. To the extent the letter kept the lid on the pressure cooker by placating Trump it did a service – it bought time for other investigations while maintaining stability. The worst outcome is something which Trump does anyway – attack both the Democrats and the media. There are other positive aspects of Barr’s letter too.
Barr’s Letter – the Upshot
The upshot of Barr’s willingness to take the heat for his letter and the president’s belief in his own vindication is that it leaves the DOJ, FBI, and state law enforcement professionals to continue their work well out of the limelight and media spectacle surrounding the 2016 election investigation. Barr’s letter also resulted in Trump going on record at least initially to say that the Mueller report should be released. He later walked that back but that act in itself was politically bad for Trump and his attempts to put the Mueller genie back in the bottle undoubtedly left more of a paper trail. Finally, stalling is of no political benefit to Trump who desires nothing more than to put the entire investigation behind him. In taking time to do proper reductions, ask the proper questions, provide the best information to congress and the American people while still assuring folks that they will obtain the necessary, Barr’s letter and his subsequent updates and responses to questions keeps information about ongoing investigations away from those in congress such as Devin Nunes who themselves may be the subject of ongoing DOJ investigations.
Barr’s Experience Matters
Barr is far from being inexperienced prosecutor. He was Mueller’s boss at one point. He knows directly and experientially that lawyers and journalists will parse every word he writes and that his words can have enormous political consequences. He knows that his own actions and communications with Trump might be investigated and perhaps even construed as a part of an attempt to obstruct justice. However, there are some important facts to keep in mind. Barr in now sixty-eight years old. While he may have taken some risk in the past with regards to his reputation and provided some legal advice that allowed for attacks on his character little in Barr’s lengthy work history suggests he is the type to gamble his reputation and legacy at this point for an incompetent president who at the end of the day may prove to be little more than a low rent Mafioso. Even in his confirmation hearing he stated that, “I feel I’m in a position in life where I can do the right thing and not really care about the consequences,” Others writers are less optimistic.
Reading Will Saletan’s read
Will Saletan reads Barr’s summary as a defense for Mr. Trump by his handpicked Attorney General. Underlying Saletan’s opinion about Barr’s motives lie questions that run parallel to some of my own. Why did Mr. Barr choose to quote Mueller limiting his conclusions to a those involving a conspiracy with the Russian government or the IRA and not “cut outs” or those used as intermediaries by the Russian government. One primary purpose for using intermediaries is to shield both the Russian Government and their sources from these types of charges.
Saletan focuses on the way Barr limited his letter to “election interference activities”. He points out, as does Tom Nichols that not all of the president’s attempts to work with Moscow were elections related. Is Mueller’s report limited to elections interference? No, we’ve linked evidence of ongoing investigation that originated in Mueller’s investigation above. At the very least he would have explained why he transferred cases to other DOJ offices as part of the requirements of the report. Mueller was tasked to conduct a counter-intelligence investigation as well. Does his report have a counter-intelligence aspect. If so, we know nothing of what Mueller concluded. Why did Barr limit his conclusions to these two areas knowing that limiting his letter in this manner would all but necessitate congressional hearings? The intent to engage congress seems even more plausible in light of the fact that Barr believes congress is the proper body to investigate the president. Yet if that’s the case it that suggests good intent with regards to the Attorney General.
Saletan has additional arguments including an entire section on the odd issue of Barr’s decision to decline further pursuit of Trump’s alleged obstruction of justice. Barr was certainly aware his decision not to move forward with obstruction of justice charges would be called into question because he took pains to explain that he was not basing his decision on that memo in his summary letter. Further, he was grilled on this during his confirmation hearings. He knew that by including this issue in his letter his decision would be viewed at best as a form of legal confirmation bias and at worst part of Trump’s own attempts to coverup alleged criminal activity. Why include a section in the letter on obstruction if not to ensure congress would investigate it?
A number of other writers have weighed-in on the obstruction issue attacking Barr’s conception of obstruction. Neal Katyal who notably drafted the Special Counsel regulations while an attorney at the DOJ writes the most in-depth criticism. He raises numerous serious questions that hit at the core of Barr’s position. Katyal focuses on what he believes to be Barr’s conclusion that Mr. Trump’s actions did not demonstrate the “corrupt intent” element of the crime. He questions how could Barr arrive at this conclusion without anyone interviewing Trump? Katyal further explains that it’s important to understand why Mueller did not seek to compel an interview. But Katyal’s question is itself is grounded in a political and legal assumption regarding the separations of powers. Did Mueller conclude that it would be better for the AG to conduct the interview? Was he leaving it for congress?
The most serious criticism Katyal levies is to question whether Mr. Barr sought to enshrine the view he expressed in his pre-nomination memo. He writes,
[Barr’s] unsolicited memo should be understood for what it is, a badly argued attempt to put presidents above the law. If he used that legal fiction to let President Trump off the hook, Congress would have to begin an impeachment investigation to vindicate the rule of law.
It’s helpful to step back and examine this from another angle. Barr is aware that if his take on federal obstruction law were to be accepted it would become a precedent that could be used by presidents from any party and that’s at the heart of his position. He knows that experientially because he worked for multiple administrations. He knows that logically as well. Yet this argument against Barr misses the mark with regards to any potential corruption on behalf of the Attorney General. It’s further evidence for the interpretation of Barr’s actions that I’ve argued. He’s not interested in helping Trump. Barr is defending executive power in general and his own particular view of executive power specifically. At worst one could argue that this position goes against Barr’s judgment but there is no basis to use it as evidence against his character or patriotism. That’s a key distinction. One can and should question his judgment without attacking his character.
Moreover, would Barr risk one of his deeply held beliefs with regards to executive power and decades of work on behalf of America simply to exonerate someone against facts uncovered during the investigation? In other words, if the president is indicted and impeached and Barr helped to cover it all up, Barr implodes as an accessory after the fact and so does his life’s work. The cost benefit analysis based on existent credible evidence weights heavily against it.
It’s incomprehensible to assume he hasn’t contemplated the consequences of personally exonerating Trump based on his controversial interpretation of a federal statute and constitutional separation of powers or that such actions would remain hidden. Additionally, as someone who served in the CIA and under Presidents Reagan and Bush he must have some concerns that President Trump might be compromised or at least vulnerable to being compromised by Vladimir Putin. He seems willing to act to support his interpretation of obstruction generally and executive power more broadly but nothing in his actions to date suggest treachery and lawlessness. With that in mind let’s move from Barr’s critics in the anti-Trump camp to an examination of the reaction to Barr’s letter from Trump’s side.
In the wake of Barr’s letter Trump and his allies immediately declared victory. Per their standard operating procedures (SOP) they are aggressively engaged in attacks on reporters and politicians with a zeal that borders on self-parody. Sarah Huckabee Sanders posted a march madness style bracket list of journalists who as David Frum points out were far more accurate than the President himself with regards to his own and his campaign’s connections with various Russians. In short, the Trump camp is irrationally ecstatic with Barr. Trump even praised Mueller after his letter. As mentioned briefly above, despite the usual Trumpian autocratic cosplay, it looks at this point like Barr accomplished one thing. He maintained a modicum of stability in the executive branch. Trump might be going full authoritarian performance art mode but so far he’s not starting a war with North Korea to distract from Mueller’s report at this point. Barr gave Trump his confidence back.
Now we need to ask: Did Barr give the president false confidence? As a matter of public record we know there were many contacts between the Trump campaign and Russia. We know there were offers for to assist from intermediaries of the Russian government forwarding offers from the Russian government. We know that those offers were at least tacitly accepted. We know there was offer to lift sanctions prior to inauguration. What we don’t know is whether members of Trump’s team had the requisite knowledge that the Russia operatives they were dealing with were intelligence agents, or whether they had the intent required to satisfy that mental element of any potential crime that might fall under the non-legal term “collusion”. We know Russia relies on the use of intermediaries in part to sow this type of confusion. It’s possible that conspiring with cut-outs rather than official foreign government agents is indeed a loophole in US law that needs to be fixed going forward. Former NSA spook John Schindler puts it in snark relief: “Apparently it’s ok to conspire against a US election as long as the guys you’re secretly parlaying with aren’t wearing ‘Hi, I’m GRU’ t-shirts.”
But is it really plausible to say that Trump’s family and courtiers didn’t know they were dealing with Russian intelligence personnel or cut-outs? There is ample reason to believe this is pretty far-fetched particularly given that Hillary Clinton’s campaign put out ads which accurately depicted the connections between Trump, his campaign, and Russia. Indeed Trump’s team seemed to know something wasn’t right because the candidate and his campaign lied about all the contacts – a lot. Moreover, at the very least, upon receiving security clearances campaign members would have been briefed that foreign nationals might try to gather information and told to report contacts. It’s difficult to see why Mueller would not have at least brought this to a Grand Jury to determine probable cause or why if he did it didn’t result in indictment. Unless as Louise Mensch reports there are indictments obtained and sealed outside the purview of the Special Counsel’s investigation. I tend to believe that. Most of the public was shocked when George Papadopoulos’ indictment was unsealed. He wasn’t even on most of our radars. Folks were less shocked when Roger Stone’s indictment was unsealed. So we know Mueller’s team had some sealed indictments. Nonetheless, on Mensch’s reporting as it relates to the future we’ll have to wait for further information to develop to confirm. In the meantime, I want to look at one more possibility as well that may converge in some way or at some point with Mensch’s report.
As a preliminary matter lets question two theories floating about the internet. One might conclude that Trump and his enablers are so incredibly stupid and incompetent they just went along blindly and clueless with Russian intelligence assets. This seems entirely plausible at least initially and an early spokesperson for Trump’s legal team made exactly this argument with an anecdote about Trump and Hope Hicks. NBC also reported that Mueller’s team had an internal dispute regarding this conclusion. However the similarity between the position of those in the Trump camp and the NBC report raises the question of which government officials NBC sourced their story from. Moreover, on reflection given Manafort’s, Gates’s, and Stone’s participation in the campaign, this conclusion does not come across as plausible. That trio knew exactly what they were doing. Like Trump they’d been playing this game for decades.
On the opposite end of the spectrum, perhaps the Trump camp was comprised of evil geniuses so adept at espionage they were able to hide all evidence of coordination from NSA and FBI counter-intelligence. However, Russian communications were intercepted. Gen. Mike Flynn, Commanding General of the Defense Intelligence Agency’s communications with the Russian embassy was intercepted. Navy SEAL Eric Prince was intercepted negotiating with Russians in the Seychelles. Neither Trump nor his campaign members nor Russian intelligence outsmarted the five eyes intelligence community. They were neither too stupid nor too smart to avoid indictment. Trump and members of his campaign were however both experienced and vulnerable.
The middle path
I’m relying in part on some of Tom Nichol’s and John Schindler’s writing herethough nothing their including should not be read to indicate their agreement.Given the problems with the two above theories, it seems more likely that campaign personnel were slowly encouraged into going along with Russia’s efforts to damage Hillary Clinton and sow discord by Russian business and intelligence connected “friends”. Maybe these friends casually made mention of past prior embarrassing financial or criminal activity as a gentle sort of stick. The Russians held a variety of incentives to offer as a carrot too from assistance with the election to a deal for Trump Tower Moscow. The Trump family has been working with Russians for a very long time. I suspect that Donald Trump Sr., Manafort, Stone, Gates and maybe even some of Trump’s children experienced a vague unease about not cooperating and a greed and vanity driven desire to cooperate.
I believe Mueller could not obtain sufficient evidence to prosecute Trump and his campaign regarding elections hacking and propaganda because instead of entering into a criminal agreement to alter the 2016 election they simply acquiesced to the Kremlin’s operation as targets of Russian influence because they already knew the process. I believe the evidence of their interactions with regards to the election will be used in subsequent prosecutions and as noted above it may already have resulted in indictments on other charges.
Trump’s team knew their participation could prove embarrassing and possibly criminal if they were caught yet still felt compelled and attacked to going along as a result of vague incentives and coercion. This means that there was no Hollywood style handler issuing orders at a drop site and also not evidence of an agreement or intent. The agreement was set decades ago and resulted in a system that was already in place after decades of work. On a related side-note, the attempt by the world’s intelligence communities to avoid having powerful government or related individuals compromised is the reason we have security classification and security clearance background checks and why those checks are updated in real time via monitoring and periodically by means of investigation. This is why Trump’s abuse of that process is so troubling.
No duress in a legal sense
I want to be clear. I’m not suggesting that the SCO concluded that members of Trump’s family and campaign were prohibited from agreeing to coordinate because they were under duress. They weren’t forced into an agreement or forced to engage in illegal activity per se. This wasn’t a violent mob threat with some enforcer dangling Donald J. Trump Jr. off the top of Trump Tower demanding the president engage in espionage. From an prosecution point of view – even if it an agreement to work with the Russians had been coerced, a duress defense would be made during plea negotiations or a during a prosecution and it would require the one claiming duress to prove that they were under an imminent threat of physical harm at the time they coordinated. I mean something very different here.
Compromised – a toned down take
This situation I’m describing would be more akin to the use of kompromat by Russian intelligence in a manner along the lines of what Tom Nichols describes here:
… how would such compromising work in practice? …[some] might be watching too much television. This is not an episode of The Americans. No one issues orders, and anyone looking for such evidence is likely to be disappointed. Rather, over time, as relationships grow, favors are asked. Friendships are pressed into service. The key is to induce the target to do what you want without telling him to do it—to be a friend, helping out friends.
Jonathan Chait’s article – criticized in a friendly way by Tom Nichols in the piece I took the above quote from drew this conclusion in a crime thriller sensationalistic type of way last year. I’m not joining or attempting to reiterate either of their efforts here nor mimic the work of John Schindler with regards to assessing Russian subversion efforts. Rather, Russian subversion and the business history are helpful to explain why Mueller’s team found a vast amount of evidence but also found it difficult to satisfy the mental elements of the crime when the players involved were both experienced and knew at least to an extent what the Russian’s were up to in regards to their elections related crimes. Chait’s most recent article revisits his conclusions specifically citing the the Moscow tower deal. But he uses it as a victory lap over his previous report rather than a possible explanation of why the president and his entourage were not charged regarding the elections interference.
With this possibility in mind it’s interesting review in broad strokes the now infamous meeting to see exactly how it’s plausibly that Barr or Mueller might conclude that meeting and other meetings and communications like it did not result in itself in an agreement by to coordinate with the Russian government but was instead a continuation of ongoing relationships that also became the foundation of more kompromat going forward.
Re-imagining the scene at Trump Tower
Here’s the scene. Russian business people connected to and members of the Russian government expressing interest in doing business with Trump. They float a Moscow Tower deal, loans, or help with Trump’s election. They’re interested in cultivating a popular and potentially powerful man. Trump knows the players, he knows what they want, he’s deal with them before. These business people through a lawyer who herself is connected to Russian Intelligence arrange a meeting. During this meeting the float various campaign related incentives to Paul Manafort with whom they’ve done business with in the past, Donald Trump Jr. who has bragged about the Trump organization doing a large amount of business with Russia, and Jared Kushner who has his own ties personally and via his wife. All three had varying levels of experience.
The president, his family, and those around him already know how these types of business deals work because Donald Trump Sr. has been working with Russians since at least 1987. They all already know what they need to do. They go along with the hacking a dissemination because it benefits them but they don’t know at the time what they’ll get out of the deal. The do know that at some point they’ll be “pressed into service.” They don’t even need to be asked twice even though they were asked multiple times. They’re thrilled for the help.
As campaign members engage in their part of the vague deal to damage Hillary Clinton and divide America they are providing their Russian counterparts with even more compromising information against themselves. And, they do in fact believe this information might implicate them in criminal activity or at the least be deeply embarrassing, politically damaging, and potentially delegitimizing with regards to the results of the elections. Maybe the threats are never spoken – but Trump and his family know that they exists and they know what they need to do to stay on Vladimir Putin’s good side.
In a situation like the one described above there would be no criminal conspiracy to coordinate with the Russian Government or their cut-outs to throw the 2016 election and no basis to prosecute despite strong evidence for various elements of the crime. The agreement, direction, and specifics of the quid pro quo would be missing. Sure there was a meeting. Sure there were e-mails released. Trump’s campaign may have even had access to them before dissemination. Recall how Trump knew Donna Brazile leaked debate questions to Hillary Clinton before Wikileaks released the e-mail proving it. As a result of the contacts those involved would then be vulnerable to coercion.
In the above scenario many of the criminal elements existed, but Mueller could not prove an agreement even if the help was welcomed and Trump’s team was kept in line after the fact via vague coercion. No new agreement took place. Indeed there was no need for a new agreement because the pattern of expectation and reward was pre-existing. The evidence in this regard was insufficient but it does serve as further evidence for other agreements for which there are ongoing investigations and possibly additional sealed indictments not directly related to the elections.
Returning to Barr, it doesn’t matter which of the three theories is correct, his summary letter is correct as it relates to the elections, and as it relates to sealed indictments about the elections. Nothing in that letter as Louise Mensch pointed out refers to indictments obtained by other offices. Nothing refers to ongoing investigations by other offices. In addition, Barr’s letter clarifying his intent to deliver Mueller’s report to congress stating that he would redact Grand Jury material lets us know that elections related evidence does play a part in ongoing investigations.
More on coercion
It is implausible to believe that everyone in Trump’s orbit who dealt with Russian intelligence or their cut-outs was not vulnerable. Manafort certainly had a criminal or embarrassing past with Russians that rendered him susceptible to blackmail as understood by the security clearance process, so did Stone, Flynn, Cohen. As Schindler, Chait, and others have pointed out, Trump was vulnerable too with massive debt, past money laundering, and history of working with Russian’s against US interests, and campaign finance felonies. Trump, his family, and many members of his campaign may not be prosecuted for coordinating with the Russian election interferences that delegitimized the 2016 election. But they’re far from being upright citizens unfairly accused of crimes that they benefitted from personally and financially. Worse than being mere career criminals, they are dupes for the Kremlin compromised by past crime and driven by destructive greed and they keep pressing themselves deeper into Vladimir Putin’s willing arms.
Barr and Rosenstein: A Bird’s Eye View
The SCO exhausted their investigation regarding the narrow issues they were tasked to examine. Mueller’s investigation determined that Russia did interfere with the election, that they did hack Hillary Clinton’s campaign as well as Democratic and Republican organizations. We know from public reporting that there was evidence of coordination but according to Barr’s summary letter it proved insufficient to recommend prosecution. We’ve examined reasons why that might be. We know Mueller found there was evidence of obstruction of justice but oddly made no recommendations. Barr testified that there was no plan to redact evidence related to obstruction. This is in keeping with his opinion that congress is the proper body to assess the presidents abuse of power rendering any claims that he’s trying to keep this information from congress to protect trump moot. It also indicates he’s less likely to look countenance the obstruction issue without underlying indictments. He also made likely made counter-intelligence findings which as mentioned above we know nothing about yet. We have yet to deal with one side criticism. Was Barr sufficiently forthcoming in his summary letter from the standpoint of Special Prosecutor Mueller or members of his team?
Team Mueller’s pushback
On April 3rd, 2019 the New York Times reported that some on Mueller’s team told their aides that Barr’s summary did not adequately capture the gravity of Trump and his campaign’s connections with Russia. The following day The Washington Post confirmed this reporting with their own details. Subsequently NBC has confirmed the report adding their own additional color. This has been framed as a shot across the bow aimed at Barr. That is a plausible read of it but overstated in a sense – as far as shots go this was more of a rubber band or sling shot than Naval artillery. The reports are hearsay within hearsay within hearsay. They have not been disputed publicly by anyone on Mueller’s team but they are sourced to government officials with knowledge of what aides of some members of Mueller’s team believe. The reports are certainly not coming from Mueller himself. So what are we to make of this?
Is a preliminary matter Barr testified that he communicated with Mueller about the summary letter and that he asked if Mueller wanted to review it. Mueller declined. This undermines some of the criticism. Others have commented that these reports were meant as a low level or subtle caution to “Trump and Company” to let the entire lot of them know that Barr’s actions look suspicious to a good many folks beyond the partisan pundits on the outside. These leaks let Barr know that if he’s up to something bad he should reconsider. In another important way, these leaks actually help Barr. By putting the president and congressional Republican enablers on notice that he can’t suppress any of their findings without making it near certain members of Mueller’s team will testify to their findings publicly, the leaks give Barr ammunition to push back. If the president call in a rage demanding he keep evidence from congress, Barr can reply that if he tries it, it can be used as further evidence of obstruction at that members of Barr’s team seem willing to testify to that before congress. Moreover, there is little the President nor the Department of Justice can do to stop those members who are no longer paid by the DOJ from testifying. These leaks give Barr leverage.
A bird’s eye view of the DOJ, the Constitution, and history
There is another aspect of these leaks that feels familiar to me as someone who was a government lawyer and Army Officer. The complaints read sound common, like complaints made by people working intensely in one area of a larger project that itself is part of an even larger project. Indeed because Mueller was given the opportunity to review the report and declined to do so it makes the team members complaining appear as though they did not see the entire picture. This is understandable and in a sense audible. In one’s direct efforts, every piece of evidence can seem to be of ultimate import.
Under good leadership this leads to constructive confrontation where the lower echelon officer in charge of a section of the project argues with the next echelon trying to impress upon higher the gravity or importance of the work. There is even guidance for how to do this when rank is involved. Sometimes the lower echelon prevails, but often times decisions are made at high echelons based on information not directly available to the lower. That appears to be the case here. This pattern is true for junior and very senior experienced people. It’s true in the civilian world as well as in the military. On a senior level these struggles are called a turf wars. The important take-away from this complaints is that irrespective of position these leaks demonstrate the alarm of parts of members of the team who have spent years of their lives working on this investigation but who may have been compartmented from other aspects of the DOJ and other Russia related investigations.
The emotions driving the leaks are legitimate. I don’t want to downplay them. It’s frustrating when one’s boss who has a birds eye view of the situation takes a different approach than the one you’ve prepared for. Deeply. It’s worse when that direction may have political reasons or at least be perceived to have them. I know this from personal experience in areas of conflict. I also know from personal experience that differing views are not a matter of right or wrong but of practical judgment regarding future effects. Elections matter. Like it or not, in this situation Barr doesn’t just have a bird’s eye view of the current DOJ, he has a living view of the history of the DOJ during times of social upheaval, and a long view of the constitutional jurisprudence surrounding the separation of powers. One can agree or disagree with actions taken, but those are practical matters that do not touch Barr’s intent. Personally I find his experience and commitment to the defense of the Constitution and of America comforting even if I ultimately end up frustrated with his judgment.
The DOJ’s response.
The DOJ responded to these leaks pointing out that every page of the Special Counsel’s report is marked as confidential. Louise Mensch points out that this response falls into a grey area. The summaries involved were done to only require minor redactions at most. And the response does not refer to the summaries but the report. She leaves Barr’s intent as a questions mark and ultimately concludes (correctly I believe) that it doesn’t matter. There is nothing Barr can do to prevent the evidence collected by Mueller’s team from coming to light.
Barr testified to two issues in regards to the summaries. First, that the letter was his responsibility and he was responsible for its content. Taking responsibility rather than blaming controversial actions on others is the mark of a good leader and profoundly anti-Trumpian. Second, he stated that he did not like summaries, that he did not intend that his letter be read as a summary, and that he tried as best as possible to use Mueller’s own language with regards to the information he provided opting instead to wait for the full release of the report before engaging in questions about something that as former FBI agent and CNN contributor Josh Campbell repeatedly points out – no one has read yet.
I would add that even summaries derived from low level classified information – information marked “confidential” still have to be vetted. In some ways it’s more difficult because the question as to when a paraphrase or summary contains classified information is not always easy to determine, particularly when there is more at risk than might be readily apparent to the investigators. I see nothing in the DOJ’s response that indicates Barr is risking prison in what would be the stupidest cover up in US history. Still, highly lawyered words that obfuscate some of the underlying issues are probably not the best move politically and Mensch’s concerns have basis.
Representative Schiff and the shifting law of grand jury secrecy
There is no reason to doubt that Barr will release the Mueller report at this point. He stated during in testimony before congress that he would have a color coded redacted report with notes explaining the basis of the redaction within around a week. His statement was timely. The debate with regards to the report is now turning to redactions. Congress and the public in general rightly want to know what will or will not be redacted. This issue is serious but the analysis cuts more in favor of heavy redactions and Barr’s intent to color code the redactions provides the information necessary for congress to request additional information from Barr or to fight for that information in court.
The DOJ indicated that Barr’s team will redact classified information, grand jury material, information related to other ongoing cases, third party sensitive personal information, and potentially material subject to executive privilege. Barr stated that he has no intent to redact any material based on executive privilege. There is little debate with regards to the redaction of classified information, uninvolved third parties, and personal information. The fight right now is over material related to specific grand jury investigations both ongoing and those which may have resulted in sealed indictments or which did not find probably cause to prosecute.
Representative Adam Schiff, the chairman of the House Permanent Select Committee on Intelligence has argued that grand jury information should not be redacted. He basis his argument on the fact that during the Watergate investigation, petitioned the court for the release of grand jury material and the court granted that permission. He’s slammed Barr over this demanding to know why he has not even requested that the court release any grand jury material.
Unfortunately for the good representative’s argument, others pointed to a case decided last week on appeal by a three judge panel in the DC circuit. Barr stated that he was bound by this decision. The case is history is summarized as follows:
Historian Stuart A. McKeever appeals an order of the district court denying his petition to release grand jury records from the 1957 indictment of a former agent of the Federal Bureau of Investigation, which McKeever sought in the course of his research for a book he is writing. The district court, lacking positive authority, asserted it has inherent authority to disclose historically significant grand jury matters but denied McKeever’s request as overbroad. On appeal, the Government argues the district court does not have the inherent authority it claims but rather is limited to the exceptions to grand jury secrecy listed in Federal Rule of Criminal Procedure 6(e).
The opinion is split. The majority decision written by Senior Circuit Judge Ginsberg found that the DC District Court is bound by the specific enumerated exemptions to the Federal Rules of Criminal Procedure found under Rule 6(3)(3) relating to what can be released and that the district court did not have the authority to act outside of those specific exemptions. This at least temporarily limits the information that Barr could request from the court. Furthermore the case that was on appeal was not related to the Mueller report at all.
Judge Ginsberg noted that the 7th circuit arrived at the opposite conclusion creating a split in the circuits which could allow the Supreme Court to step in and solve the issue. There are good reasons in the dissenting opinion to disagree with the majority here. However, the disagreement is beside the point with regards to Representative Schiff’s concern. Unless and until the full DC circuit, or the Supreme Court overturns the decision of the panel, the opinion is binding on the DC District Court. Moreover this case was argued September 21, 2018 well before Barr was confirmed, and months before acting Attorney General Matthew Whitaker was appointed to the position. Since then Attorney General Jeff Sessions recused from the investigation, the only one who had purview over both was Deputy Attorney General Rosenstein who has not contradicted Barr’s position with regards to redactions.
Outside of the precedent and limitations this decision places on DC District Court, The this case completely invalidates the argument that Barr’s failure to seek Grand Jury information is further evidence that his intent to redact Grand Jury material was nefarious. One might argue that he should still petition for the release of the information at district courts in other jurisdictions. However action of this sort work be inequitable. It would not be fair or in the interest of justice to apply a different set of rules to different targets in ongoing grand jury proceeding related to the same core issues and possibly involving co-conspirators.
Moreover providing Grand Jury information is limited for a variety of reasons. We want people to cooperate with Grand Juries. We do not want to prejudice ongoing cases with material that may be out of context. And we do not want to damage the reputations of individuals who may have been the subject of a Grand Jury proceeding but against whom the Grand Jury found no probable cause. Even here, the most damaging argument in favor of calling Barr a bad actor turns out to lack any basis. It was never a credible argument. Barr was in fact being a conscience actor following the rule of law as the DOJ had argued in the DC Circuit the entire time with regards to his intent to redact grand jury information in the Mueller report.
Conclusion: Is Barr a White Hat?
Yes. Barr is a white hat. It’s OK to hate him. It’s OK to criticize his views of the law and of politics. He may not be acting in the way those opposed to President Trump like at this present point in history, but he is acting within the rule of law, and he believes with solid legal justification that he’s acting for the benefit of all Americans in the long term by seeking to protect the power granted by the Constitution to the executive branch of the federal government. Mueller had a statutory obligation to notify the Attorney General when he concluded his investigation. Similarly, Barr had a statutory obligation to notify congress. Barr has multiple ongoing investigations to protect and a president who often demonstrates his willingness to flaunt the rules and norms to keep in check while national security is at risk because other criminal activities under investigation could still be used by hostile foreign intelligence assets to compromise a Trump. Barr’s letter to congress at a bare minimum had to simultaneously report to congress as required by law, assure the president to avoid a constitutional crisis level meltdown, and protect ongoing investigations for as long as possible. It did all three.
Like many contested issues where there is ongoing troubling activity there were some negative consequences to Barr’s letter that helped fuel concern over his actions. Trump at least temporarily was able to claim a win. His window of opportunity to make that claim credibly has already passed. Congress is scheduling Barr to testify. Representative Nadler on behalf of the House Judiciary Committee requested the full report by April 2, 2019. When it was not delivered by that time, the committee subsequently voted to authorize a subpoena for the full report of the Special Counsel’s investigation but as of this writing they have yet to issue the subpoena. The public will likely get a redacted copy of the report fairly soon. It’s important to note that even in this state the report will be devastating for Trump and whatever redactions may exist will tell us quite a bit too.
Likewise, Trump had a relatively short period of time to credibly attack journalists reporting his extra-official affairs and to try to pummel into submission the corporate organizations that provide those journalists with a platform and to shore up his base by trying to convince them that any new evidence that comes out is fake. His timeframe to successfully use this tactic in this regard too has passed. A reckoning is coming with regards to the multiple ongoing investigations particularly in the Southern District of New York and New York State – and this timeframe is reflected in his manic attempts to claim vindication.
Barr has everything he needs to tell Trump to pound sand if asked to interfere with these investigations and little ability to do anything even if he wanted to. Moreover, he’s already put his novel theory regarding obstruction into practice even if he claims he did not – and it may have been done to protect other prosecutions. As a result of his letter, Barr can now oversee those investigations in relative peace as Trump and his #MAGA supporters engage in their quixotic battle against the free press and the Democrats holding his administration in check. Finally, both Barr’s letter notifying congress that he had received Mueller’s report, and his summary report to congress already accomplished one very important thing. Those letters created near universal demand for the release of Mueller’s report and ensured that every aspect of that report will be sought. By tailoring a narrow letter, by leaving so many questions, by drawing only one very conspicuous conclusion regarding obstruction, Barr gave a gift to journalists, pundits, Democrats, and the public: questions the public will demand answers to.
While the process plays out, Trump will continue to use the opportunity to try to garner support and to play to the media. He will go on and on about it at upcoming rallies. But the more the president saber rattles, the more damning any future criminal indictments will be. We should remain vigilant and continue to apply political pressure to release the report. We should hold a healthy skepticism with regards to Barr’s conduct. He’s far too comfortable with expansive executive power and far too uncomfortable with the laws that hold an abusive unfit would be dictator in check. Yet I understand why he holds those beliefs. Moreover I believe his own deeply held political views require him to hand the investigative materials over to congress and provide as complete a report as possible to the American people. He believes congress and US voters are the proper place and have the proper power to prosecute an American president.
Even if you disagree with all of my conclusions, or even if all of my conclusions are ultimately wrong, I would encourage everyone to wait for the redacted report and the ongoing prosecutions with other DOJ and state prosecutors to finish before attacking the DOJ and condemning the AG. To do so risks further diminution of the rule-of-law already in the middle of one of the biggest pressure tests since the United States Civil War. One of the lessons I took away from working closely with local national populations in Iraq and Afghanistan is that one has to act decently and give trust if one wants to get trust and decency in return.
So far the evidence suggests that Barr and the DOJ successfully protect federal law enforcement from the attacks of an angry president seeking to demean the investigation into Russia’s interference with our elections by painting it as a partisan campaign against himself personally originated and conducted by “Angry Democrats.” Barr’s notification letter went a long way towards rehabilitate the DOJ’s image on the right just as his summary letter sought to distance the department from politics in order to preserve its legitimacy. He has protected the integrity of ongoing investigations, and in the end, protected America by giving the process and his prosecutors the space and peace needed to complete their investigations and to ensure that any crimes committed by the president and those close to him are brought to light and to justice while providing stability and the continued respect for rule of law. While he may appear to be wearing a black hat, sometimes good guys don’t wear white.
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Wow! It’s been a while since I’ve read an article as broad, objective, & comprehensive as Cal Carnahan’s “Black Hat”. Thank you. Additional thanks to Louise Mensch & Patribotics for its publication. Kudos to Cal!
Yes. Barr is a white hat.
More like a mob hat.
I enjoy your articles and commentary because I can make some sense out of them. I just wish you had a good editor with political savvy who could help with sentence construction. I wish you had proofreader who had the ability to teach you how to slow down and carefully read your writing, and teach you to reread for mistakes, reread for sense, reread for understanding, and reread your writing while editing each time. This must be said. You have not yet learned such a skill. It would benefit your writing so much (and your readers’ comprehension, too) if you could analyze your writing for comprehension, correct it, check for errors, rearange, delete, and revise. I’m sorry. I am so frustrated trying to make sense of your words. On the other hand, you can make me see things politically and psychologically, and that’s why I still read you. — Retired Teacher from California
The fact that he even entertains looking in to previous administrations “wrongdoing” says just the opposite
Cal needs an editor. The article is a grammatical nightmare. I love your work, but this one does not meet my writing standards.
He raises some good points, though.
Chris Wall Sent from my iPad
A white hat – Lordy, you have to be kidding. So you argue that Barr is facilitating Trump’s talking points, so he doesn’t blow up the world – well, that’s not his job. He should quit rather than facilitating unethical practices.
Are you kidding me? https://www.esquire.com/news-politics/politics/a27101724/william-barr-investigate-fbi-trump-russia/
We live in a hierarchical society and in no way does a subordinate adjudicate his/her boss. This boss happens to be the President of the USA which makes it a special case because a sitting President cannot be indicted and therefore the new rules for the special prosecutor would not apply. Instead the President is overseen by The House of Representatives which is the peoples’ arm of Congress, the co-equal branch of government and a peer. The Attorney General should deliver the results of the report to the overseeing body intact.
Additionally, if the President can pick a subordinate to judge him that has publically gone on the record ahead of time to say that the investigation should not have happened, that is obstruction of justice.