It’s hardly the first time that Barr has run into trouble in recent weeks. And that made his testimony to the Senate Judiciary Committee on Wednesday a tense affair.
Below are highlights and lessons from the hearing.
1. Barr is unrepentant — and still presenting things favorable to Trump
If you thought Barr might bend to criticism that he had been too favorable to President Trump and change his approach, you’d be wrong. And one exchange encapsulated it.
The committee’s top Democrat, Sen. Dianne Feinstein (Calif.), began by questioning Barr about one of the key events in the obstruction portion of the special counsel’s probe: Trump trying to get then-White House counsel Donald McGahn to dispute media reports that Trump had tried to persuade McGahn to fire Mueller.
Barr suggested that the initial New York Times report on the event had gone further than the evidence by saying Trump explicitly “directed” McGahn to have Mueller fired. But the Mueller report concludes that Trump did do that: “Substantial evidence . . . supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”
Barr also suggested that it was possible Trump’s actions weren’t obstructive, because “he was primarily concerned about press reports” — not about affecting the investigation. Again, the Mueller report appears pretty clear on this point. It says Trump’s continued efforts to change McGahn’s account long after the article published “indicates the President was not focused solely on a press strategy but instead likely contemplated the ongoing investigation and any proceedings arising from it.”
Throughout his testimony, Barr repeated many of the same arguments and comments that landed him in hot water in the first place, and he again leaned into the idea that the Russia investigation might have been improperly launched — as Trump has argued. Asked by Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) whether he shared “my concerns about the counterintelligence probe and how it was started,” Barr responded, “Yes.”
Barr also said he shared Graham’s concerns about the FISA (Foreign Intelligence Surveillance Act) process and stood by his controversial past use of the word “spying” to describe how former Trump campaign aide Carter Page was monitored. “I don’t think the word ‘spying’ has any pejorative connotation at all,” Barr said. “I’m not going to back off the word ‘spying.' ”
(The first definition of the verb “spy” in Merriam-Webster’s dictionary is “to watch secretly usually for hostile purposes.”)
2. ‘I didn’t exonerate’ Trump
Despite Barr’s posture generally favoring Trump when it came to legal questions, there were a couple of moments in which he disputed key Trump talking points.
One of them came when Barr made clear he didn’t view his decision not to accuse Trump of obstruction of justice as the “complete and total exoneration” that Trump claims.
“I didn’t exonerate,” Barr said. “I said that we didn’t believe that there was sufficient evidence to establish an obstruction offense.”
That’s a key distinction, because it allows for the possibility that Trump did obstruct justice — but that as a prosecutor he wouldn’t have recommended charging the crime, based on the evidence.
3. His allegedly misleading previous testimony
In addition to rebuking Barr, Mueller’s letter called into question his past testimony. Barr testified before the House last month — after receiving the letter — and suggested he wasn’t familiar with how the Mueller team perceived his actions.
When asked whether he knew what was behind reports that members of the Mueller team were unhappy with his summary of the special prosecutor’s report, Barr said, “No, I don’t.”
Barr explained Wednesday that he was narrowly answering the question: “I don’t know what members he’s talking about, and I certainly am not aware of any challenge to the accuracy of the findings. . . . I talked directly to Bob Mueller — not members of his team.”
Barr repeatedly returned to how Mueller told him that his letter summarizing the report wasn’t inaccurate. But that’s not really the issue. The issue is whether it cherry-picked from the Mueller report and excluded key details. Mueller implied strongly that Barr had misled and excluded important information. And in his past testimony, Barr suggested that he wasn’t familiar with anyone on Mueller’s team being upset about his summary letter.
4. A rift with Mueller?
Barr and Mueller are reported to be friends, but a few comments suggested there might be some tension between them. Barr suggested that Mueller could have prevented the confusion in the first place.
“I offered Bob Mueller the opportunity to review that letter before it came out,” Barr said, “and he declined.”
Barr’s intent might have been more to suggest that he did his due diligence in releasing the letter summarizing the report — rather than that Mueller did anything wrong. But it sure sounded as if he was saying Mueller could have spoken up sooner.
Barr also suggested later that Mueller’s opinions don’t really matter because he serves in the Justice Department and reports to the attorney general. He likened Mueller to a “U.S. attorney” in the DOJ’s pecking order.
“His work concluded when he submitted the report to the attorney general. At that point, it was my baby,” Barr said. “It was my decision how and when to make it public — not Bob Mueller’s.”
Later in the hearing, Barr called Mueller’s letter “a bit snitty” and suggested Mueller didn’t write it himself. He also said that when he spoke with Mueller after the letter, he told him: “Bob, what’s with the letter? Why don’t you just pick up the phone and call me if there’s an issue?”
Barr, of course, knows why Mueller wrote it. He wanted a record.
5. Graham’s misleading preamble
Graham has turned into one of Trump’s most loyal allies on Capitol Hill. And true to form, he started the hearing on a very pro-Trump foot.
Except that many of his claims were misleading.
Graham said the Mueller report had stated there was “no collusion.” In fact, the report ruled more narrowly that there was no “conspiracy” and explicitly said it wasn’t evaluating the broader concept of collusion because it isn’t a legal term.
Graham said, “As to obstruction of justice, Mr. Mueller left it to Mr. Barr to decide.” In fact, Mueller didn’t ask Barr to make a decision on obstruction (as Barr himself has said), nor did Barr need to make the call. Mueller made clear in his report that he didn’t think it was the Justice Department’s job to accuse a sitting president of crimes, since a sitting president can’t be indicted.
And, finally, Graham suggested Barr’s previews of the Mueller report, both in his summary letter and in a news conference just ahead of the report’s release, didn’t really matter. “Here’s the good news,” Graham told everyone. “You can read the report.” But Barr in many ways pre-spun the report — to the extent that members of Mueller’s team and Mueller himself were clearly concerned. And setting the first narrative matters.
Graham hailed Mueller as a public servant, but he did not dwell upon Mueller’s concerns about Barr’s handling of the matter.
6. Barr is better at this than Senate Democrats
When Barr was being confirmed by the Senate, I wrote about how he seemed to mollify the Democrats on the Senate Judiciary Committee without conceding much of anything. They seemed oddly satisfied with his answers and didn’t land many punches when it came to his repeated criticisms of the Mueller probe.
They were certainly tougher on Barr this time. But again Barr seemed to bob and weave his way through their lines of questioning, evading trouble and talking his way out of jams. They talked tough, but he largely outmaneuvered them again. There were a few exceptions, including Sens. Kamala D. Harris (D-Calif.) and Sheldon Whitehouse (D-R.I.), but the hearing concluded without their being able to extract much.
We’ll see Thursday whether the House can do any better — if Barr winds up testifying, that is.