Tuesday evening we learned that Mueller wrote Barr a letter shortly after Barr released a four-page memo summarizing key conclusions of the investigation into Russian interference in the 2016 election. Mueller’s letter took issue with Barr’s presentation of the special counsel’s work, asserting that the memo “did not fully capture the context, nature, and substance” of the investigation.
This is a dispute of significance, particularly given Barr’s public representations about the probe. Below, the broader context of the formation and conclusion of the special counsel probe and how that overlapped with Barr’s arrival at the Department of Justice.
May 17, 2017: Mueller is appointed as special counsel.
With then-Attorney General Jeffrey B. Sessions having recused himself from oversight of Russia-related investigations, it fell to Deputy Attorney General Rod Rosenstein to decide how to respond after Trump fired FBI Director James Comey in May 2017. Rosenstein appointed Mueller to oversee the Russia probe, giving him and it some measure of independence from Trump’s oversight.
The mandate was simple: Investigate Russian interference in 2016 and any coordination with elements of Trump’s campaign, as well as other matters that might arise as part of that investigation. That would eventually include possible obstruction of justice by the president.
June 8, 2018: Barr sends a memo to the Trump administration.
Barr, who served as attorney general under President George H.W. Bush, sent an unsolicited memo to Rosenstein and Assistant Attorney General Steve Engel in June 2018, as Mueller’s team was pushing forward on its investigation.
The focus of the memo was the idea that Mueller’s probe included an assessment of whether Trump had tried to obstruct the investigation. While admitting that he was “in the dark about many facts,” given the secrecy surrounding Mueller’s work, Barr’s view was broadly that such an investigation was suspect and that “Mueller’s obstruction theory is fatally misconceived.”
An obstruction investigation only became viable “after the alleged collusion by the president or his campaign is established first,” the memo argued. At another point he wrote that “if a DOJ investigation is going to take down a democratically-elected president, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a debatable one.”
Nov. 7, 2018: Sessions is fired.
The day after the 2018 midterm elections, Trump booted Sessions and appointed Matt Whitaker to serve as acting attorney general.
Dec. 7, 2018: Barr is nominated to serve as attorney general.
Whitaker wasn’t there long. In early December, Trump tapped Barr for the job.
Jan. 15 and 16, 2019: Barr’s confirmation hearings.
During Barr’s Senate confirmation hearings, the June memo came up. In his opening remarks, he described it as “narrow,” focused only on one specific theory he thought Mueller might be considering, based on news reports. He clarified that it wasn’t the case that he thought a president could never obstruct justice. At one point, he told Sen. Dianne Feinstein (D-Calif.) that his arguments about obstruction were “speculative.”
He also tried to walk back a comment he’d made in 2017 about an investigation into Hillary Clinton being more warranted than Mueller’s probe.
Feb 14: Barr is confirmed.
Barr was approved as Trump’s second attorney general by a 54-45 vote in the Senate.
March 22: Mueller’s team completes its work.
About a month later, Mueller’s team completed its work. In accordance with the regulations governing a special counsel, Barr informed Congress in a letter that Mueller’s team was done and clarified that at no point had the Department of Justice told Mueller that he couldn’t move forward with any prosecutions.
March 24: Barr releases a summary of the report.
Two days later, on a Sunday, Barr released a four-page overview of what Mueller’s team determined. It only quoted Mueller selectively and in brief. It focused on two central questions: Did anyone on Trump’s team illegally coordinate with the Russian government’s two-pronged attempt to interfere in the election and did Trump try to obstruct the investigation itself?
The answer to the first question was no, according to Barr, who cited part of a sentence from Mueller’s report: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
On the question of obstruction, Barr quoted Mueller writing that the investigation didn’t exonerate the president. But Barr quickly noted that his own analysis, conducted in concert with Rosenstein, determined that Trump hadn’t violated any laws.
“In making this determination,” he wrote, “we noted that the special counsel recognized that ‘the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the president’s intent with respect to obstruction.” In other words, in the phrasing of his June memo, he didn’t believe that the “claim of wrongdoing [was] solidly based on evidence of a real crime.”
“In cataloguing the president’s actions, many of which took place in public view,” the letter reads, “the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent” — all of which would be needed to prove obstruction beyond a reasonable doubt.
It took Trump very little time to lift up Barr’s assessment.
“There was no collusion with Russia,” he said. “There was no obstruction, and — none whatsoever. And it was a complete and total exoneration.”
March 27: Mueller writes a letter to Barr.
Several days later, Mueller wrote the private letter to Barr contesting his presentation of the probe’s conclusions.
“The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this office’s work and conclusions,” it read. “There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”
Mueller pressed Barr to release the two-volume report’s executive summaries, which Barr declined to do.
The two spoke by phone the next day. Asked by Barr if he thought the four-page letter was inaccurate, Mueller reportedly said that it wasn’t, but that coverage of the letter was leading to incorrect assumptions about the investigation. (That description might have applied equally well to Donald Trump Jr.'s initial explanation of the June 2016 Trump Tower meeting covered in the Mueller report.) The special counsel’s main worry, The Post reported Tuesday, was that the public’s understanding of the obstruction investigation was incorrect.
Barr also reportedly objected to Mueller’s characterizing the four-page document as a summary.
March 29: Barr releases a follow-up letter to Congress.
He repeated that point in a letter sent to Congress the next day. That letter noted that his four-page document “was not, and did not purport to be, an exhaustive recounting” of what Mueller found.
”[M]y notification to Congress and the public provided, pending release of the report, a summary of its ‘principal conclusions’ — that is, its bottom line,” he continued. He later added, “I do not believe it would be in the public’s interest for me to attempt to summarize the report or release it in serial fashion.”
At the time this letter was released, the dispute with Mueller stemming from the March 27 letter was not publicly known.
April 4: Reports emerge about Mueller team frustration.
A few days later, frustration among members of Mueller’s team — now largely back to their former jobs — emerged in news reports.
The evidence of obstruction, one person who spoke with The Post indicated, “was much more acute than Barr suggested.”
“There was immediate displeasure from the team when they saw how the attorney general had characterized their work instead” of the report’s own summaries, another official said.
April 9-10: Barr appears on Capitol Hill.
The next week, Barr testified before the House and the Senate as part of his regular duties as the head of the Justice Department. Unsurprisingly, the subject of the Mueller probe came up.
On April 9, he was asked about the April 4 news reports by Rep. Charlie Crist (D-Fla.).
“Reports have emerged recently, general, that members of the special counsel’s team are frustrated at some level with the limited information included in your March 24 letter, that it does not adequately or accurately necessarily portray the report’s findings,” Crist said. “Do you know what they’re referencing with that?”
“No, I don’t,” Barr replied. “I think — I think — I suspect that they probably wanted more put out, but in my view, I was not interested in putting out summaries or trying to summarize because I think any summary regardless of who prepares it not only runs the risk of, you know, being underinclusive or overinclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out at once.”
The next day, Sen. Chris Van Hollen (D-Md.) asked about the same tension.
“Did Bob Mueller support your conclusion” about obstruction? Van Hollen asked
“I don’t know whether Bob Mueller supported my conclusion,” Barr replied.
Van Hollen returned to the June 2018 memo.
“Did you see any evidence in this report about whether or not President Trump committed what you call a classic sense of obstruction of justice?” he asked.
“I’m not going to characterize or discuss the contents of the report,” Barr replied. “The report will be made public, hopefully next week, and I will come up and testify at that point about it.”
Those answers were not the most interesting news to emerge from Barr’s testimony. The media instead focused on his claim that the Trump campaign had been “spied on,” something that Trump’s reelection team quickly seized on for fundraising.
April 11: Rosenstein defends Barr.
Speaking to the Wall Street Journal, Rosenstein said that Barr was “being as forthcoming as he can, and so this notion that he’s trying to mislead people, I think is just completely bizarre.”
April 15: Details of Barr’s 1989 summary emerge.
Shortly before the report was released, New York University professor of law Ryan Goodman revealed new details about a 1989 incident in which Barr claimed to be presenting the “principal conclusions” of a legal document but which later turned out to be significantly incomplete.
April 18: The report is released.
The plan for the release of the report ensured that Barr’s assessment of what it contained would be released before the public could see even the first page. Barr held a news conference that morning in which he outlined what the full report contained.
At three separate points, he echoed Trump’s constant refrain that there was “no collusion” — though he constrained the lack of collusion to Russia’s social-media and hacking efforts. The report itself, though, released a few hours later, specifically avoided using “collusion” as the benchmark against which the campaign’s actions were judged, instead looking at criminal culpability.
Barr offered a long rationale for Trump’s innocence on claims of obstruction, including muddying the water on intent by noting Trump’s frustration about an investigation that, he said, ultimately showed that there was no collusion.
At several other points in Barr’s remarks and the questions he answered afterward, he misrepresented or buried conclusions from Mueller’s report itself. What Barr said was a lack of a conspiracy, Mueller presented as lacking sufficient evidence. What Barr said was a decision on obstruction that was made outside the context of Justice Department rules barring the indictment of a president, Mueller pointed to specifically in explaining why his team didn’t make determinations about whether Trump broke the law. What Barr presented as full cooperation by the White House ignored that Trump only offered written responses to questions from Mueller’s team — and often woefully incomplete responses at that.
Mueller’s report is specific in noting that he was often stymied in his efforts to find the answers to questions. In Barr’s presentations of Mueller’s findings, the results lack those caveats. What’s more, Mueller’s report specifically indicated that it simply sought to catalogue the evidence for obstruction, at times hinting that Congress should be the arbiters of wrongdoing by Trump on that point.
Barr, of course, made the public decision that Trump hadn’t violated the law back in his four-page letter. He said he didn’t believe Mueller had actually meant to leave the issue to Congress, since “we don’t convene grand juries and conduct criminal investigations for that purpose.”
April 20: The Post reports on the core dispute.
Two days after the report was released, The Post detailed the extent of the dispute between Mueller’s team and Barr’s over obstruction. Barr and Rosenstein had learned only in March that Mueller didn’t intend to weigh in on the question of obstruction, a decision that reportedly surprised them. That was particularly the case given Mueller’s willingness to specifically evaluate the question of coordination with Russia’s interference efforts.
April 29: Rosenstein submits his resignation.
Earlier this week, Rosenstein announced his intent to leave the Justice Department on May 11, a resignation that had been expected for some time. He didn’t mention the Mueller probe in his resignation letter.
May 1: Barr appears before Congress.
In remarks prepared for his testimony on Capitol Hill, Barr addressed his decision-making on the question of obstruction.
“After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that, under the principles of federal prosecution, the evidence developed by the Special Counsel would not be sufficient to charge the President with an obstruction-of-justice offense,” the remarks read.
They made that determination because “the prosecutorial judgment whether a crime has been established is an integral part of the Department’s criminal process,” Barr’s comments read — an apparent reference to the dispute raised in The Post’s April 20 report. Given the push for making the report public, “it would not have been appropriate for me simply to release Volume II of the report” — the volume dealing with the obstruction question — “without making a prosecutorial judgment.”
So he and Rosenstein made that judgment: Trump hadn’t violated the law.