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The William Barr perjury question

The attorney general certainly wasn’t transparent about his interactions with Mueller. But that’s not the same as lying.

House Speaker Nancy Pelosi (D-Calif.) said May 2 that Attorney General William P. Barr “lied to Congress” during his Senate Judiciary Committee testimony. (Video: Reuters)

For all the Republican caricatures of her, House Speaker Nancy Pelosi (D-Calif.) is hardly a fire-breathing, San Francisco liberal ideologue. She’s generally cautious about overreach on stuff like impeachment. She’s uncomfortable with some of the newer, more left-leaning elements in her caucus. She’s a pragmatist interested in keeping her majority intact.

So when she comes out and flat-out accuses the attorney general of a crime, it carries some weight.

That’s what Pelosi did Thursday. In a news conference, she accused William P. Barr of lying to Congress. Asked to confirm she was accusing Barr of a “crime,” she did.

In doing so, the speaker joins with many of her colleagues who have accused Barr of perjury or said he should resign — or both.

But was his testimony a lie? If you look closely at Barr’s words, clearing the very high bar that exists for proving perjury would be difficult (even if you set aside that it would be his own Justice Department bringing such charges, which . . .). Were his words misleading and opaque? Yes. But that’s not the question.

At issue here is testimony Barr gave to both the House and Senate last month. The testimony came after he summarized the Mueller Report’s principal conclusions and said he would not accuse President Trump of obstruction of justice. He was asked at the time about news reports that suggested members of special counsel Robert S. Mueller III’s team were unhappy with how Barr had handled previewing their report. What we didn’t know at the time was that Mueller had also sent Barr a letter raising concerns, and the two of them had spoken on the phone about the matter.

Here’s the key exchange from his testimony in front of the House Appropriations Committee on April 9, with Rep. Charlie Crist (D-Fla.) (key parts bolded):

CRIST: 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 24th letter, that it does not adequately or accurately, necessarily, portray the report’s findings. Do you know what they’re referencing with that?
BARR: No, I don’t. 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.
So I was not interested in a summary of the report, and in fact at the time I put out my March 24th letter, there was nothing from the special counsel that wasn’t marked as potentially containing 6e material, and I had no material that had been sanitized of 6e material. So I felt that I should state the bottom line conclusions and I tried to use special counsel Mueller’s own language in doing that.

Barr was asked about this at Wednesday’s Senate hearing, and he explained that he was asked to account for what members of Mueller’s team said — not Mueller himself — and that he had only heard from Mueller.

That would seem questionable, because Mueller, himself, could be construed as a “member of the special counsel’s team.” At the same time, the reporting at the time indicated this was coming not from Mueller, but rather from others beneath him in the pecking order.

From a good-government standpoint, it might have been nice for Barr to acknowledge Mueller’s own personal concerns here, or at least let on that he had gotten wind of the thrust of some complaints. He does go on to suggest there might have been a desire for him to disclose more — which is precisely what Mueller requested — but he couches it as him “speculating” rather than him speaking based upon what Mueller had actually told him. But again, if he hadn’t spoken to other members of Mueller’s team about this, it would technically be speculation about their own personal concerns.

The second exchange at-issue here is from April 10, with the Senate Appropriations Committee and Sen. Chris Van Hollen (D-Md.):

VAN HOLLEN: The president went out and tweeted the next day that he was exonerated. That wasn’t based on anything in the Mueller report, with respect to obstruction of justice. That was based on your assessment. That was on March 24. And now, you won’t elaborate at all as to how you reached that conclusion. Because I’m not asking you what’s in the Mueller report; I’m asking about your conclusion. Let me ask you this. You said ...
BARR: Well, it was a conclusion -- it was a conclusion of a number of people, including me. And I, obviously, am the attorney general. It was also a conclusion of the Deputy Attorney General Rod Rosenstein.
VAN HOLLEN: I understand. No. I’ve read your letters --
BARR: (Inaudible) I will discuss that decision after the report is out.
VAN HOLLEN: Did -- did Bob Mueller support your conclusion?
BARR: I don’t know whether Bob Mueller supported my conclusion.

Barr again seems to have had an opportunity to disclose his interactions with Mueller or simply the fact that Mueller sent him a letter, and he doesn’t.

Again, though, the narrowness of the question is important. The question wasn’t about whether the two of them had spoken or if Mueller had any concerns; it was specifically about whether he knew if Mueller supported his conclusion on obstruction of justice.

The Mueller letter we’ve seen takes issue with what Barr had disclosed from the Mueller report, but it did not take issue with Barr and Deputy Attorney General Rod J. Rosenstein deciding they wouldn’t accuse Trump of obstruction. Logically, Mueller very well might take issue with that, given he personally decided he couldn’t “exonerate” Trump on obstruction. But we have no evidence that they actually conversed on that point.

In sum, these exchanges may be read as epitomizing Barr’s evasiveness and as him avoiding disclosing a very significant dialogue he had with Mueller. But as a legal question, it’s difficult to see how they might land him in trouble (absent something more directly contradictory emerging).

Barr is not the first Trump ally to be accused of perjury — not even his first attorney general: Mueller actually investigated Trump’s first attorney general, Jeff Sessions, for perjury when it came to his denial of contacts with Russians during the 2016 campaign. Some Democrats have suggested the man who came between Sessions and Barr, former acting attorney general Matthew G. Whitaker, also might have perjured himself. And just earlier this week, House Intelligence Committee Chairman Adam B. Schiff (D-Calif.) made a criminal referral to the Justice Department arguing that Trump ally Erik Prince might have committed perjury.

Sessions was never officially accused, and I’ve evaluated the Whitaker and Prince claims here and here. Of the four, the case for Barr perjuring himself might be the weakest. And that makes sense, given he’s a two-time attorney general and veteran of this kind of high-profile public spectacle.