But Mueller didn’t look at collusion, as such, and in his report, he explained why.
“[C]ollusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law,” the Mueller report reads. “For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law.”
Barr offered a colloquial use of “collusion” that Mueller specifically rejected — clearly in part to accord with Trump’s repeated insistences about collusion between his campaign and Russian actors.
Earlier this week, the site Just Security detailed a 1989 incident in which Barr, then head of the Office of Legal Counsel at the Justice Department, offered a summary of an OLC opinion that was later revealed to have skipped over significant details. A review of what Barr said about Mueller’s report Thursday, compared with what Mueller writes, similarly shows a number of significant differences. Barr’s news conference repeatedly (but not universally) mischaracterized what the report itself presents, as below.
What Barr said about Russian coordination
“Thanks to the Special Counsel’s thorough investigation,” Barr said at the news conference, “we now know that the Russian operatives who perpetrated these schemes did not have the cooperation of President Trump or the Trump campaign — or the knowing assistance of any other Americans, for that matter.”
The “schemes” were twofold: the hack of the Democratic Party network and Clinton’s campaign staff emails; and the effort to sow discord on social media and at events by the Internet Research Agency or IRA. Barr specifically cleared the campaign and Trump on any collaboration with each of those efforts, saying, at one point, that “the Special Counsel found no evidence that any Americans — including anyone associated with the Trump campaign — conspired or coordinated with the Russian government or the IRA in carrying out this illegal scheme.” Later, Barr added that Mueller “did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations.”
There’s also the question of the distribution of that hacked material, which was largely conducted through WikiLeaks. Barr’s description was more nuanced.
“Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy,” Barr said. “Here, too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.”
In other words, unless someone helped hack the material in the first place, no violation of the law occurred, and no one associated with the campaign violated the law. Which, essentially, is just a repeat of his assertion that no one from the campaign aided in the hack.
Mueller, however, considered a different view of the distribution of the hacked material.
His team “also considered, but ruled out, charges on the theory that the post-hacking sharing and dissemination of emails could constitute trafficking in or receipt of stolen property,” the report states. Because the law centers on tangible items, they determined that the law wouldn’t apply in this case. Much of the discussion about the dissemination of the stolen material is redacted.
On the central question of the campaign’s interactions with the Internet Research Agency or the hacking, Barr’s language mirrors Mueller to a large degree, save for his use of “collusion.” At times, though, he skips over some pertinent details.
“Although members of the IRA had contact with individuals affiliated with the Trump Campaign, the indictment does not charge any Trump Campaign official or any other U.S., person with participating in the conspiracy,” Mueller writes. “That is because the investigation did not identify evidence that any U.S. person who coordinated or communicated with the IRA knew that he or she was speaking with Russian national engaged in the criminal conspiracy.”
Members of Trump’s team had interactions with Internet Research Agency employees but unwittingly. (This has been known since the indictment against the agency was published last year.)
It’s important to underscore that the report notes the limitations of Mueller’s investigation.
“Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity,” Mueller writes. He notes several legal limits and then adds that “[e]ven when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to . . . false-statements charges.”
What Barr said about links to Russian actors
Barr addressed a question that, in the eyes of many Americans, constitutes “collusion” between Russia and the Trump campaign.
“[T]he Special Counsel investigated a number of ‘links’ or ‘contacts’ between Trump Campaign officials and individuals connected with the Russian government during the 2016 presidential campaign,” Barr said. “After reviewing those contacts, the Special Counsel did not find any conspiracy to violate U.S. law involving Russia-linked persons and any persons associated with the Trump campaign.”
That “conspiracy to violate U.S. law” is important and mirrors what Mueller said.
“[W]hile the investigation identified numerous links between individuals with ties to the Russian government and individuals associated with the Trump Campaign, the evidence was not sufficient to support criminal charges,” Mueller said, noting that the statutes under consideration included being an unregistered agent of the Russian government. Notice the difference, though: Mueller says there was insufficient evidence. Barr said there was no conspiracy found to violate the law.
What Barr said about obstruction
Barr noted at the outset that the assessment made by him and Deputy Attorney General Rod J. Rosenstein took issue with how Mueller approached the question of obstruction of justice.
He and Rosenstein “concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense,” Barr said. He added that they “disagreed with some of the Special Counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law but that they instead “evaluated the evidence as presented by the Special Counsel in reaching our conclusion.”
As Mueller makes clear, that presentation of evidence was his goal. Since there exists an opinion from the Office of Legal Counsel that prevents the Justice Department from indicting a sitting president, Mueller’s team “conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.” Their investigation specifically aimed “not to apply an approach that could potentially result in a judgment that the president committed crimes.” If, however, “we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”
In other words, they aimed to collect evidence and were open to exonerating him on charges of obstruction, though not to trying to prove a criminal case.
“Based on the facts and the applicable legal standards, however,” Mueller continues, “we are unable to reach that judgment” — that is, that Trump clearly didn’t commit obstruction. At several points, in fact, the Mueller report aims at Congress as a potential arbiter of the obstruction question.
In an effort to bolster his own decision to exonerate Trump, Barr tries to contextualize Trump’s behavior. It’s important to quote this at length. We’ve added boldface for emphasis.
“In assessing the President’s actions discussed in the report, it is important to bear in mind the context,” Barr said. " . . . As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates. At the same time, there was relentless speculation in the news media about the President’s personal culpability. Yet, as he said from the beginning, there was in fact no collusion” — at least using the definition Barr offered, which was limited to the interactions described above.
“[T]here is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said. “Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation.
“Apart from whether the acts were obstructive,” Barr continued, “this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.”
The two boldface segments above are directly at odds with what Mueller writes.
First, the White House didn’t fully cooperate: Trump himself refused to sit for an interview with Mueller. The report addresses that, with Mueller explaining why they decided against pursuing a subpoena.
“Recognizing that the President would not be interviewed voluntarily, we considered whether to issue a subpoena for his testimony. We viewed the written answers to be inadequate,” the report states. “But at that point, our investigation had made significant progress and had produced substantial evidence for our report.” Ultimately, given the progress that had been made and the evidence elsewhere, they decided against what would have been a lengthy and nasty subpoena fight.
Second, there’s a reason that Trump didn’t take other actions obstructing the special counsel: The people who he directed to take those actions decided against it.
“The President’s efforts to influence the investigation were mostly unsuccessful,” Mueller writes, “but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”
That’s not how Barr presents the issue.
What’s more, Mueller’s report suggests strongly that Trump’s frustration and anger was not something his team saw as working in Trump’s favor. The report notes two phases of Trump’s frustration, divided by the point at which Trump learned that there was an obstruction of justice inquiry. In that second phase, the report describes more urgent and direct actions taken by Trump. That increase is directly linked to concern about an obstruction inquiry.
After his prepared remarks, Barr took questions from reporters. One asked whether Mueller’s decision on obstruction was solely a function of the OLC opinion about indictments of presidents.
“We specifically asked him about the OLC opinion and whether or not he was taking the position that he would have found a crime but for the existence of the OLC opinion,” Barr said. “And he made it very clear several times that that was not his position. He — he was not saying that but for the OLC opinion he would have found a crime; he made it clear that he had not made the determination that there was a crime.”
Again, though, the OLC opinion did affect how Mueller approached the obstruction question, as outlined above. Mueller didn’t make a determination about a crime because of how he decided to approach the obstruction question which was itself a function, in part, of what the OLC wrote.
What Barr didn’t talk about
Barr didn’t mention at all an incident that occupies a lengthy portion of the Mueller report: the June 2016 meeting at Trump Tower.
As we reported last year, federal campaign finance laws could be interpreted to conclude that the meeting in which Donald Trump Jr. was offered material incriminating Hillary Clinton amounted to an illegal campaign contribution. Mueller ultimately decided it didn’t.
“There are reasonable arguments that the offered information would constitute a ‘thing of value’” under the law, the report states, “but [we] determined that the government would not be likely to obtain and sustain a conviction.”
“[T]he government would unlikely be able to prove beyond a reasonable doubt that the June 9 meeting participants had general knowledge that their conduct was unlawful,” it reads at another point. “The investigation has not developed evidence that the participants in the meeting were familiar with the foreign-contribution ban or the application of federal law to the relevant factual context. The government does not have strong evidence of surreptitious behavior or efforts at concealment at the time of the June 9 meeting” — though there was evidence of an attempt to hide it later.
This is really the theme of the Mueller report, by its nature. Mueller explains where and how members of the Trump campaign or his broader circle brushed against the boundaries of the law, often not crossing it so clearly that Mueller felt a case could be proved in court. As instructed by the regulations establishing the special counsel position, Mueller is offering his legal analysis about what happened.
Barr, in his news conference, took those descriptions and transformed them into political exoneration.