Pundits are treating Attorney General William P. Barr’s letter summarizing special counsel Robert S. Mueller III’s report as the final official word on the matter. It is, in fact, far from it. The letter contains clear clues that Barr will release much more of the report’s contents soon — and that the president may not like everything he’ll read.
Lawyers are trained to write very precisely, and as a former lawyer I read Barr’s letter with that in mind. It appears there are at least three items we should keep in mind as we digest its contents.
First, Barr is quite clear that the guiding law prevents him from releasing “material that is or could be subject to Federal Rule of Criminal Procedure 6(e).” That rule makes it a crime to disclose “certain grand jury information in a criminal investigation and prosecution.” The attorney general states that he is reviewing the report to identify any such information, as well as “any information that could impact other ongoing matters, including those that the Special Counsel has referred to other offices.”
Subject to those caveats, however, the attorney general signals that he will release much, if not all, of the remainder of the report. The key sentence thus reads: “[My] goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.” That means there could be a lot of information to digest regarding the president’s and his campaign’s activities.
Of particular interest should be the special counsel’s descriptions of the case for and against the president obstructing justice in regard to the investigation. Barr writes that “for each of the relevant actions investigated, the report sets out evidence on both sides of the question.” While the letter states that most of the president’s actions relating to potential obstruction “have been the subject of public reporting,” he is silent about whether most of the evidence has been previously reported. He surely chose those words carefully, and from that we should presume that there is potentially quite a bit of evidence regarding potential obstruction that has not previously been discussed or come to light.
That both the special counsel has chosen not to pursue any further indictments, and that the attorney general has decided the evidence presented does not “establish” that the president committed obstruction, work in favor of public disclosure. Since the president is not at risk of indictment, he cannot be criminally prejudiced by disclosure of any information. Such evidence would be withheld according to the principles set forth above only if it came to light as a result of a grand jury investigation rather than the special counsel’s own digging or if it would prejudice an ongoing case referred elsewhere. Given the personal nature of the obstruction charge, this strongly suggests that unless someone else is being investigated for potential obstruction in relation to this matter, any evidence pertaining to Trump’s own potential obstruction is not protected and hence open to disclosure.
This evidence could have a quite different effect on public opinion than it would in a legal proceeding. Criminal prosecutions require proof “beyond a reasonable doubt,” and Mueller clearly saw a strong case against Trump under that standard. While Barr decided he did not, reasonable observers could conclude differently. They could also conclude, perhaps, that they have reasonable doubts but think Trump did obstruct justice under the more lenient “clear and convincing evidence” or “preponderance of the evidence” standards. Prosecutors would not look at a criminal case through those lenses, but politicians and pundits are sure to do so.
Barr’s section labeled “Obstruction of Justice” is essential here. Every sentence is extremely precise and carefully worded. The matter of the president’s intent is key, as a prosecutor would have to prove that such a crime was committed with “a corrupt intent.” Barr writes that the special counsel’s finding that the president was not involved in an underlying crime bore “upon the President’s intent” regarding obstruction. In plain English, that suggests there is evidence that people could conclude constitutes criminal obstruction, but that Trump’s saving grace in the law is that he also could not be proven to have colluded with the Russians. Political observers could disagree.
Third, one should note that Barr twice states that the special counsel’s report was, by federal regulation, a “confidential report" to the attorney general. While he implies that he shared the report with Deputy Attorney General Rod J. Rosenstein, he is silent about whether he shared it with the president himself. Based on the careful invocation of “confidential . . . to the Attorney General,” we should presume that he has not. Which seems to mean that the president’s blanket statement that Barr should release the entire report is based on neither he nor his lawyers having the slightest idea what it contains. Oops.
Barr’s subsequent release is highly likely to contain much more detail, much of it at least unflattering to the president, than most pundits surmise. With respect to the issues of Russian collusion and obstruction, we have clearly reached the end of the beginning. We are nowhere near the beginning of the end.