There was a time when I thought the backlash against Attorney General William P. Barr’s Mueller report letter was a little overblown. Yes, Barr did some suspect things, including using few of Mueller’s own words. He also cleared President Trump of obstruction of justice, even though the report hadn’t. But the full report was coming out! And usually you want to temper expectations ahead of a big release — not set the bar so high, such as “complete and total exoneration.”
I was wrong. What Barr did shaped the debate for the half of the country that mattered. It gave Trump’s supporters a built-in narrative that, though misleading, has taken hold.
One of the biggest revelations in the Mueller report was that the special counsel’s decision not to charge or exonerate Trump for obstruction was more nuanced than Barr led us to believe. In fact, Robert S. Mueller III said he decided not to make a “traditional prosecutorial judgment” because existing guidelines from the Justice Department’s Office of Legal Counsel (OLC) say a sitting president cannot be indicted. He went on to say that he could have cleared Trump if the evidence warranted, but it seems that no matter how damning the evidence, he concluded it wasn’t his place to accuse Trump of crimes.
That’s . . . not really what Barr said. In his letter summarizing Mueller’s principal findings, Barr said nothing about Mueller’s reasoning — just that “the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.”
The invocation of “difficult issues” could sure lead one to believe that Mueller simply thought this was too tough a call to accuse Trump. But that’s not how Mueller explained that decision.
Similarly, in his news conference before the report’s release on Thursday, Barr was asked about whether Mueller punted on obstruction because of the guidelines or because the evidence was inconclusive. He said he would let the report speak to that point, but then added:
... 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. 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.
This, again, made it sound like Mueller was indeed too conflicted. Turns out, though, that Mueller didn’t make the determination that there was a crime because he decided that he shouldn’t in the first place.
(Philip Bump has a review of other ways in which Barr seemed to mislead about or otherwise bury unhelpful aspects of the Mueller report in his preambles.)
We do have the full Mueller report now, and we can all use that to draw a fuller picture of what Mueller actually found and why he concluded what he did (and didn’t). But the report also entered a very partisan political atmosphere in which many people are simply looking for something to confirm the conclusions they had already drawn about obstruction and collusion.
Whether through design or happenstance, Barr gave Trump supporters that before the report came out. So while we now have extensive evidence that Trump tried to impact the Russia investigation, for half the country it has been entered into an already existent framework of “well, it wasn’t a crime.” That’s technically true, but only because Mueller decided he should not accuse Trump of a crime.
Without that framing, you have to wonder how the report might have landed differently. It might not have swayed many people who had already decided there was “no collusion” and “no obstruction.” But Barr solidified that narrative for Trump ahead of the report’s release, even though it was hardly the full story.
And then he cleared Trump himself — despite his own prejudgments of the obstruction case when he was a private citizen, and despite Mueller’s clear disagreement that the evidence exonerated Trump.