There was no “worst” moment in the hearing, but rather a series of them. As Sen. Sheldon Whitehouse (D-R.I.) remarked afterward, Barr "said Justice Department policy against indicting a president wasn’t the reason Mueller didn’t conclude the president broke the law, when the report says the opposite. He said authorized Justice Department investigations are ‘spying’ and that it’s the media’s fault that characterization rubbed anyone the wrong way. He indulged in hair-splitting the likes of which I’ve rarely seen in the Judiciary Committee.”
Barr conceded that he had not read the evidence underlying the report before taking the prosecutorial decision on himself. He claimed not to know that Mueller and his team objected to the report, but later called the letter — Mueller went to the trouble of putting his concerns in writing — “a bit snitty.” He insisted that Mueller was only upset about news coverage, not Barr’s four-page summary — which strains credulity. Barr then refused to turn over notes of his discussion with Mueller.
Barr’s original sin was in distorting the Mueller report (“the four-page letter that Mr. Barr issued in March and supposedly described the Mueller report omitted the two key factors driving the special counsel’s decision . . . First, that he could not indict a sitting president, so it would be unfair to accuse Mr. Trump of crimes even if he were guilty as sin; and second, Mr. Mueller could and would clear a sitting president, but he did not believe the facts cleared the president”). Barr has twice doubled down on his dishonesty by asserting in testimony to Congress that he had no reason to think Mueller took exception to it. It’s a good thing that Mueller documented his scathing assessment of Barr’s handiwork.
At Wednesday’s hearing, Barr denied that Trump’s telling former White House counsel Donald McGahn to say that he hadn’t been instructed to fire Mueller was obstruction, and he also dismissed Trump’s apparent public threats to Michael Cohen as insufficient evidence of witness tampering. His position on what constitutes witness tampering and his refusal to look at the totality of evidence of obstruction would seem to contradict long-held Justice Department positions.
Barr also let slip that although he was suspicious about the origins of the Russia probe, he was not all that familiar with the circumstances surrounding George Papadopoulos’s attempt to get dirt from the Russians on Hillary Clinton (which was in fact the trigger for the investigation). He seemed unfamiliar with evidence that Paul Manafort shared campaign polling data with Konstantin Kilimnik. He was stumped when asked whether a campaign in the future should report efforts of a foreign intelligence operation to share dirt on an opponent. (Had he read the report or just Fox News’s coverage of it, which left out the most damning parts?)
Barr offered the radical opinion that a president can dismiss any investigation he thinks is unwarranted. “The president does not have to sit there constitutionally and allow it to run its course,” Barr insisted. “The president could terminate that proceeding and it would not be a corrupt intent because he was being falsely accused.” That would have blessed President Richard M. Nixon’s Saturday Night Massacre and would give every president an exemption from investigation (no president thinks there is a predicate for investigating him), a notion entirely at odds with the notion that everyone must obey the law. We would never have an investigation of wrongdoing if the president could immediately short-circuit it; the result would be an open invitation to commit serious, serial crimes.
Barr insisted that use of the word “spying” in describing his department’s counterintelligence investigation was appropriate. (“We went back and looked at press usage, and up until all the faux outrage a couple of weeks ago, it’s commonly used in the press to refer to authorized activities.” Actually, it’s not.) He insisted that the Trump campaign had not been briefed on Russian interference, then had to correct himself when staff pointed out that the campaign had been warned.
He feigned ignorance of evidence that the Trump campaign sought to benefit from Russian interference, although Mueller discussed it in his report. Barr continued to insist that Trump fully cooperated, despite evidence of witness tampering and Trump’s refusal to sit for an interview.
If anything, Barr underscored the necessity of calling Mueller to testify. “I was actually against calling Mueller before Congress on the principle that prosecutors shouldn’t be required to explain their discretion, but AG Barr’s testimony now essentially mandates that the special counsel’s presence is required for explanation,” attorney Mark S. Zaid told me. “AG Barr repeatedly cites personal conversations with Mueller that sought to explain discrepancies that existed on paper, including in the letter we learned of today.”
Susan Hennessey of Lawfare blog agrees. After Barr’s performance, she concluded, “There is just no question that Attorney General Barr appeared before Congress today not in his capacity as the nation’s chief law enforcement officer but rather as President Trump’s personal defense attorney.” She added: “Barr’s conduct has been indefensible, and what we saw [Wednesday] was that even he couldn’t offer a credible explanation for his behavior. Congress and the public need to hear from Mueller directly.”
Most ominously, perhaps, Barr insisted that he would not recuse himself from any of the 14 spinoff cases arising out of Mueller’s probe. That will leave a man who thinks his job is defending Trump in charge of investigations into Trump and his associates. That sounds like a banana republic, which just about sums up the Barr-Trump view of our Constitution.
Barr did so poorly under questioning from senators that it hardly came as a surprise when he decided to cancel his appearance before the House Judiciary Committee, where he would be questioned by counsel. That’s about as close to a confession of his lack of credibility and consistency as we are likely to get.