Let me say at the outset that I fully accept one core conclusion reached by the special counsel’s investigation, as described in Attorney General William P. Barr’s letter to Congress: The probe did not establish any criminal conspiracy between the Trump campaign and Russia to sabotage the 2016 election.
That is genuinely, if narrowly, exonerating for the president on the “collusion” question.
But even if you accept that to be the case, the following three things are also true:
- Donald Trump got elected president in part due to a massive foreign attack on our democracy.
- Even if Trump’s campaign didn’t collude with that act in a criminally chargeable manner, he committed extraordinary abuses of power to try to prevent a full accounting of that attack on our democracy from taking place.
- Trump’s attorney general is in the process of preventing a real public airing of the full dimensions of both of the above points.
This is nonsense. Indeed, one of the most important takeaways from Barr’s brief summary of Robert S. Mueller III’s conclusions is that it underscores the above three points with fresh urgency.
On collusion, Barr writes, Mueller’s investigation “did not find that the Trump campaign or anyone associated with it conspired or coordinated with the Russian government” in its sabotaging of the election on Trump’s behalf, via massive cybertheft and disinformation warfare. As the Lawfare team notes, while this is certainly exonerating, it’s possible Mueller documented collusion-like behavior that fell just short of criminality, but we can’t know without seeing the full report.
On obstruction of justice, Barr’s letter says that Mueller declined to decide whether Trump had committed crimes. Instead, Mueller’s report “sets out evidence on both sides of the question,” and explicitly says that it “does not exonerate” Trump of criminality. That left the decision to Barr, who says he and Deputy Attorney General Rod J. Rosenstein determined that the evidence developed by Mueller is “not sufficient to establish” obstruction.
Multiple legal observers have been scaldingly critical of Barr for making this decision, because of its haste, and on substantive grounds. Marcy Wheeler points out that during his confirmation hearings, Barr flatly conceded that certain types of conduct Trump has actually committed would constitute obstruction of justice. So why the absolution?
Underscoring that point, former prosecutor Ken White notes that Barr is silent on a crucial question: whether he concluded Trump didn’t interfere in the investigation in an obstructive manner based on the evidence, or, by contrast, that Trump didn’t obstruct justice because interfering inherently cannot be obstruction when done by the head of the executive branch.
Barr made this latter argument in an unsolicited memo that has been sharply criticized by legal experts. Crucially, this is also the theory advanced by Trump’s own lawyers. The question is whether Barr based the decision on this theory. If so, as Neal Katyal suggests, this would put Trump above the law.
But we cannot even evaluate Barr’s decision unless we see the evidence that Mueller laid out “on both sides of the question.”
Guess who decides whether we get to see that evidence: Barr does.
Barr could release the obstruction portions right now
We do have some sense of the evidence Mueller amassed from reporting on Trump’s efforts to derail the investigation. They include firing his FBI director after demanding “loyalty”; pressing him to lay off his national security adviser; leaning on other intelligence officials to corral him; and Trump’s effort to bully his former attorney general into protecting him from the probe. While establishing criminal obstruction is tricky, those are all flagrant abuses of power.
It’s all but certain Mueller has established substantially more about those episodes than is publicly known. And as Katyal points out, Barr’s letter notes that Mueller investigated numerous potential acts of obstruction, not all of which have been publicly reported, meaning there are episodes we still don’t know about.
Mueller amassed all this evidence without exonerating Trump on obstruction. Barr looked at all of this evidence and did exonerate him — allowing Trump to claim vindication on obstruction as well.
“Barr gave the president a powerful talking point that Mueller didn’t,” former Justice Department spokesman Matthew Miller told me.
But what’s stopping Barr from releasing the facts Mueller established, so we can evaluate this decision for ourselves? Nothing, Miller argues, because this evidence wasn’t gathered via grand jury, which could require the maintenance of secrecy.
“There’s never been any sign that Mueller used the grand jury for the obstruction inquiry,” Miller told me. “The White House produced documents and witnesses voluntarily. If there’s no grand jury involvement, then Barr could release that portion of the report today.”
Let’s remember what this is really about
Trump’s efforts to derail the investigation weren’t merely about halting scrutiny of “collusion.” They were also about halting an accounting of the Russian attack on our democracy irrespective of whether “collusion” happened. Barr’s letter reminds us of this, by noting that Mueller’s report documents Russia’s extensive efforts to swing the election, including a concerted campaign to divide the country along social lines.
We already know a great deal about this from Mueller’s indictments of Russians. But Mueller’s report would likely tell us much more.
We know Trump has long opposed a full accounting of that Russian attack — not just because he denies collusion but also because he reportedly saw the very existence of that attack as undermining the greatness of his victory. Indeed, it’s been documented that this is why he did so little to secure the country against the next Russian attack.
Thus, what Barr’s letter really tells us is that, without the Mueller report, we are being denied a full reckoning into that subversion of our democracy and a full public airing of Trump’s efforts to prevent that reckoning from happening.
Barr’s letter promises more disclosure to come, and perhaps we will get it. If not, perhaps Congress can force it. But until then, none of those efforts at public accountability are taking place. And the implications of that are terrible to contemplate.