When Attorney General William P. Barr released a four-page memo two weeks ago opining that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense,” we already knew enough to be sure that Barr was spinning the contents of the report his memo claimed to summarize, as multiple reports now say he did.
That’s because there was already public evidence at the time that undermined Barr’s conclusions. Barr’s letter may have been accurate, technically speaking. But based on what it omitted about two key associates of President Trump — his longtime adviser Roger Stone and his former campaign chairman, Paul Manafort — it was obvious that the attorney general had left whole areas of special counsel Robert S. Mueller III’s findings out of the summary. That Mueller’s team thinks Barr made the investigation’s findings look less damaging to Trump should not come as a surprise.
Barr’s summary clears Trump of obstruction of justice because Mueller didn’t have enough proof to charge a narrowly drawn crime: conspiracy or coordination with the Russian government. That wouldn’t include coordination with WikiLeaks. Indeed, because of First Amendment protections, coordinating with WikiLeaks would probably not be a crime.
It might, however, look a lot worse for Trump than Barr’s flat declaration that no one “in the Trump campaign or anyone associated with it conspired or coordinated with Russia.”
Even without Mueller’s report, we know from Stone’s indictment for lying to Congress and Trump’s former longtime personal attorney Michael Cohen’s sworn congressional testimony that the special counsel’s investigation found evidence that Stone sought to optimize the WikiLeaks release of the emails Russia stole from Democrats.
In July 2016, for example, Cohen testified, Stone called Trump and told him that within days, a massive dump of emails would damage Hillary Clinton, to which Trump replied with something along the lines of, “Wouldn’t that be great?” Shortly thereafter, someone on the campaign “was directed” (Stone’s indictment doesn’t say by whom — but we don’t know whether Mueller’s report does) to find out what other stolen documents would be coming. On July 25, 2016, records show, Stone asked author and conspiracy theorist Jerome Corsi not only to find out what was coming but also asked him to “get the pending WikiLeaks emails” themselves. By Aug. 2, 2016, Corsi’s emails with Stone reflect mutual understanding that Clinton campaign chairman John Podesta would be targeted. And when WikiLeaks dropped Podesta’s emails on Oct. 7, 2016, just after the release of a video showing Trump making demeaning comments about women, someone close to a high-ranking Trump campaign official credited Stone for the timing, which minimized the impact of the video, texting him: “well done.”
(Stone has pleaded not guilty; a trial is set for November.)
The indictment against Stone doesn’t lay out how he managed to learn this information and seemingly optimize the release of stolen emails, perhaps in part because that might not be a crime. Instead, it charges him with lying about making all these efforts. Mueller’s report must explain why he chose to charge Stone, because by regulation, the document must explain all his prosecutorial decisions.
Barr’s memo, which comments only on coordination with the Russian government, not WikiLeaks, makes no mention of Stone.
In charging Stone, Mueller alleged that Stone tried to hide details of his efforts to optimize the email releases to benefit the campaign. And when Stone promised he would never testify against the president, Trump responded on Twitter by celebrating Stone’s stance: “Nice to know that some people still have ‘guts!’ ”
Stone is an example of a Trump associate who allegedly attempted to coordinate between the campaign and the larger Russian operation but not with the Russian government itself — which puts his alleged activity outside the narrow scope of Barr’s discussion.
Manafort, Stone’s friend and former business partner, may have gone further in attempting to coordinate with Russians directly, by providing information that might make their efforts more effective. But as U.S. District Judge Amy Berman Jackson, presiding over his federal trial in Washington, ruled, Manafort lied about the topic in interviews with investigators. That prevented Mueller from understanding whether Manafort was engaged in an intentional conspiracy with Russia when he shared polling data with his former business partner Konstantin Kilimnik on Aug. 2, 2016.
While the details surrounding what happened at that meeting are obscured by redactions in several filings, it’s clear that Manafort and his deputy, Rick Gates, met their former partner, Kilimnik, at the Havana Club in New York. They took efforts to hide the meeting, leaving separately, “because of the media attention focused at that very time on Manafort’s relationships with Ukraine.” According to Gates, Manafort walked Kilimnik through the campaign’s polling data; Kilimnik would have been familiar with the kind of polling data Manafort preferred from their work together in Ukraine.
Court documents describe that Manafort knew Kilimnik would pass the data on to several other people. One of those, according to Jackson, amounted to a link to Russia. “Whether Kilimnik is tied,” as the government claims, “to Russian intelligence or he’s not, . . . one cannot quibble about the materiality of this meeting,” Jackson ruled.
At that same meeting, Kilimnik and Manafort discussed a peace deal in Ukraine, an arrangement that would have amounted to sanctions relief for Russia. Their discussion on various Ukrainian peace plans would continue for over 18 months after the meeting.
Trading polling data as part of a request for Russian help in exchange for promises on sanctions relief might amount to a conspiracy. As Mueller prosecutor Andrew Weissmann said in one hearing, Manafort’s intent when he shared this data “is in the core of what the special counsel is supposed to be investigating.” And yet Manafort lied about it, even while he was supposed to be cooperating with the Mueller team. Weissmann argued in court that Manafort lied because telling the truth about why he shared campaign polling data with a Russian partner suspected of having ties to the same intelligence agency that was still hacking Democratic targets “would have, I think, negative consequences in terms of the other motive Mr. Manafort could have, which is to at least augment his chances for a pardon.”
As with Stone, Trump applauded Manafort’s unwillingness to cooperate: “Unlike Michael Cohen,” the president tweeted after his longtime personal lawyer had entered a plea agreement, Manafort “refused to ‘break’ — make up stories in order to get a ‘deal.’ Such respect for a brave man!” Reportedly, Trump even floated a pardon to Manafort before his trial, and revisited the idea after prosecutors deemed him to have breached his plea deal by lying.
In both these cases, Mueller has already provided evidence that Trump’s close associates made efforts that could easily be described as coordination in the larger Russian election operation, even if their lies prevented such coordination from being charged. Trump’s celebration of their refusal to cooperate in Mueller’s investigation may have encouraged them to hide details of any coordination. Yet Barr’s memo is silent on both men.
Which is why Barr’s judgment that Trump didn’t obstruct justice because “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference” doesn’t hold up. Even the public record shows that Trump’s associates appear to have tried to coordinate with Russia, let alone what the nearly 400 pages Mueller filed to Barr might show. The same public record suggests Trump’s potential abuse of his pardon power may have thwarted Mueller’s ability to get at the underlying crime.
Barr was asked about such a scenario — one where the president encourages false testimony by floating pardons — three times in his confirmation hearing. “Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?” Sen. Patrick J. Leahy (D-Vt.) asked him. “That would be a crime,” Barr responded. And yet Barr appears to be hiding the details of what really happened with Stone and Manafort to come to the opposite conclusion in his memo.
Perhaps that’s why Barr wrote a narrowly crafted memo rather than releasing the summaries Mueller’s prosecutors wrote themselves. Because if Barr showed us the evidence, his judgment that Trump didn’t obstruct justice would look even more like a coverup than the public record already shows it to be.