“We don’t have an attorney general.”
On Thursday morning, Barr tried to explain why he declined to bring obstruction-of-justice charges against Trump, even though special counsel Robert S. Mueller III did not exonerate him of it. Barr appealed to us to consider how victimized Trump felt, when considering the extensive efforts to derail the investigation detailed in the report, noting Trump “was frustrated and angered by his sincere belief that the investigation was undermining his presidency, propelled by his political opponents and fueled by illegal leaks.”
This appeal is stunning, particularly when viewed alongside the report’s details, which paint an exceptionally damning picture of Trump’s conduct over the course of two years. What’s more, in light of all these findings, Barr’s four-page letter summarizing Mueller’s report looks even more irresponsible in retrospect.
Barr’s letter merely claimed Mueller had collected evidence on “both sides” of the question of whether Trump had committed criminal obstruction of justice, and said he and deputy Rod J. Rosenstein had decided charges weren’t warranted — without sharing any of the evidence that Mueller had collected so that we could evaluate their decision ourselves.
That gave Trump and his propagandists a way to spin Mueller’s report as full exoneration for two weeks.
We still don’t have a persuasive or detailed explanation as to why they didn’t bring charges. But we do have much of the evidence Mueller collected. And the misconduct is extremely grave.
Mueller’s report concludes that Trump extensively tried to exert “undue influence” over the investigations into Russian conspiracy and obstruction of justice. Remarkably, Mueller concludes that Trump failed in his mission, not because he didn’t try, but because his underlings wouldn’t carry out his orders:
Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations. The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. [...]
The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.
Now let’s look at some of the specific acts of misconduct the Mueller report details:
- Mueller confirmed the accounts that former FBI director James B. Comey supplied: Trump demanded his loyalty and pressed Comey to lay off national security adviser Michael Flynn. Trump falsely claimed that neither of these things happened, but the report sides with Comey’s versions of events.
- Mueller details that after Trump fired Comey, the White House flatly lied to cover up the fact it was Trump’s decision. Trump called Rosenstein — who had written that memo providing the pretext that the firing was about the FBI’s unfair treatment of Hillary Clinton — and asked him to do a news conference explaining the firing. But Rosenstein refused, saying that if he did that, he’d have to tell the media the truth, which was that it was Trump’s decision, and not his. A White House spokesman subsequently told the falsehood to the media.
- The report notes that when Trump became aware he was being investigated for obstruction of justice, Trump’s misconduct grew substantially more serious: "At that point, the President engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation.”
- The report details that Trump repeatedly ordered White House counsel Donald McGahn to instruct Rosenstein to fire Mueller. The report says McGahn “decided to quit because he did not want to participate in events that he described as akin to a Saturday Night Massacre,” but ultimately stayed and deflected the requests.
- When media reports emerged about Trump telling McGahn to have Mueller fired, Trump instructed McGahn to lie to the public and claim that the president had never ordered him to remove the special counsel. McGahn refused.
- The report has new details on how Trump misled the country about the infamous 2016 Trump Tower meeting. It recounts that top Trump adviser Hope Hicks wanted to disclose that Russians had offered Donald Trump Jr. information helpful to the campaign. But the president nixed that, explicitly ordering Hicks to issue a statement that falsified the true purpose of the meeting.
- The report confirms new details about Trump’s pressure on top intelligence officials to impede the investigation. It details that Trump may have pressed Director of National Intelligence Dan Coats to subvert the investigation, with one aide to Coats suggesting (in the report’s words) that Trump wanted him to “get it over with" or “end it."
- Trump also called a second top official and asked him to publicly refute news stories linking him to Russia. A third official called it (in the report’s words) the "most unusual thing he had experienced in 40 years of government service.”
- Trump directed his former campaign manager Corey Lewandowski to tell then-Attorney General Jeff Sessions to give a speech announcing he was directing Mueller to focus his investigation only on “election meddling for future elections." Lewandowski was unable to arrange a meeting with Sessions.
It’s important to note that in many of these cases, Trump initially lied about this conduct, which has now been confirmed. Taken all together, what we are left with is this: Trump will not be prosecuted for obstruction of justice, but that does not mean he did not obstruct justice. He clearly did.
Trump tried to subvert, undermine, discredit and even halt the Russia investigation — an investigation that was necessary to develop a full accounting of a hostile foreign power’s well-organized campaign to help elect him president, an accounting he did not want to happen. Trump’s actions were an appalling offense to the integrity of our legal system and the office he holds.
One other point: The position taken by the president’s team has long been that Trump cannot violate obstruction-of-justice statutes by definition because any interference in investigations is within his power as head of the executive branch. As Trump’s lawyers put it, as “chief law enforcement officer,” Trump “could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.”
This is essentially what Barr himself told Trump in an unsolicited memo, which is probably why he got the job.
But importantly, in his report, Mueller rejected this argument:
In sum, contrary to the position taken by the President’s counsel, we concluded that .. we had a valid basis for investigating the conduct at issue in this report. In our view, the application of the obstruction statutes would not impermissibly burden the President’s performance of his Article II function to supervise prosecutorial conduct or to remove inferior law-enforcement offices. And the protection of the criminal justice system from corrupt acts by any person — including the President — accords with the fundamental principle of our government that “[n]o [person] in this country is so high that he is above the law.”
Mueller also conspicuously declined to conclude that “no criminal conduct occurred,” and declined to reach the judgment that Trump “clearly did not commit obstruction of justice."
Taken all together, that’s a clear message from Mueller to Congress and the public. Barr may not prosecute Trump; indeed, his intent to protect the president is why he’s attorney general today. But Congress can still conclude that the multitudinous acts of obstruction the report lays out provide more than ample reason to take action. It’s just a matter of deciding to do it.