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 24th letter, that it does not adequately or accurately, necessarily, portray the report’s findings. Do you know what they’re referencing with that?”

Attorney General William P. 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.”

Sen. Chris Van Hollen (D-Md.): “You made a conclusion on the question of obstruction of justice that was not contained in the Mueller report. ... Did Bob Mueller support your conclusion?”

Barr: “I don’t know whether Bob Mueller supported my conclusion.”

“As we stated in our meeting of March 5 and reiterated to the Department early in the afternoon of March 24, the introductions and executive summaries of our two-volume report accurately summarize this Office’s work and 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. We communicated that concern to the Department on the morning of March 25. 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.”

Did Barr mislead Congress in these responses to Crist and Van Hollen?

We reviewed the attorney general’s testimony, the special counsel’s report on Russia and President Trump, and letters from Barr and Mueller that have been released to the public.

Barr’s answer to Crist was misleading at best. His response to Van Hollen was arguably misleading, but not for the reason the senator claimed.

The Facts

First, a timeline of events:

  • On March 5, at a meeting that included Barr and Mueller, the special counsel said the introductions and executive summaries of his two-volume report accurately summarized his investigation and conclusions.
  • On March 22, Mueller submitted his 448-page report to Barr.
  • On March 24, Mueller’s team reiterated to Justice Department officials that the introductions and executive summaries were accurate.
  • Later in the day on March 24, Barr publicly released a letter relaying Mueller’s bottom-line decision not to bring criminal charges against Trump. Barr declined to release the Mueller report’s introductions or executive summaries, stating later that the redaction process was incomplete at the time and that he was concerned about releasing too much or too little information from the report.
  • The next morning, March 25, the special counsel’s office reached out to Justice Department officials with concerns about Barr’s letter. Mueller sent a letter to the attorney general enclosing the introductions and executive summaries “marked with redactions.” (This letter has not been released to the public.)
  • On March 27, Mueller sent another letter to Barr, stating that the attorney general’s March 24 letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions” and requesting that the introductions and executive summaries of his report be released.
  • The next day, March 28, Barr read Mueller’s letter, and the two had a phone conversation. The Washington Post reported a month later: “In that call, Mueller said he was concerned that media coverage of the obstruction probe was misguided and creating public misunderstandings about the office’s work, according to Justice Department officials. Mueller did not express similar concerns about the public discussion of the investigation of Russia’s election interference, the officials said. Barr has testified previously that he did not know whether Mueller supported his conclusion on obstruction.”
  • On April 3, the New York Times and Washington Post reported that some of Mueller’s investigators were frustrated by Barr’s limited disclosures about their work. The Post reported that “members of Mueller’s team have complained to close associates that the evidence they gathered on obstruction was alarming and significant,” and more acute than Barr had indicated.
  • On April 9, Barr testified before a House panel and took Crist’s question.
  • On April 10, Barr went before a Senate panel and took Van Hollen’s question.
  • On April 18, Barr released the full Mueller report with some redactions.
  • On April 30, The Washington Post first reported on Mueller’s letter dated March 27 and the subsequent phone call between the special counsel and attorney general.
  • The next day, May 1, the Justice Department publicly released Mueller’s letter from March 27 in full. Later that day, Barr gave testimony before the Senate Judiciary Committee and defended his responses to Crist and Van Hollen.

This chain of events shows that Mueller repeatedly tried to get the introductions and executive summaries out to the public, both before Barr’s letter from March 24 and after its release — all of it weeks before Barr’s testimony on April 9 and 10.

A spokesman for Mueller declined to comment and referred us to the special counsel’s March 27 letter.

In response to comments from House Speaker Nancy Pelosi (D-Calif.), who accused Barr of lying to Congress on Thursday, Justice Department spokeswoman Kerri Kupec said “Speaker Pelosi’s baseless attack on the attorney general is reckless, irresponsible and false.”

Crist’s question

Alluding to the reports in the New York Times, The Washington Post and other media, Crist said 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?” Crist asked.

Barr said: “No, I don’t. I think — I think — I suspect that they probably wanted more put out.”

The attorney general couched this statement as a hunch. But Mueller by that point had manifested clear concerns to Barr about the limited information released by the Justice Department. Why was Barr resorting to suspicions? He could have pointed to Mueller’s specific claims in response to Crist.

When members of the Senate Judiciary Committee asked Barr about this at a hearing on May 1, the attorney general indicated that Crist’s question did not cover the concerns in Mueller’s letter.

Barr gave the following explanation: Crist asked about unidentified members of Mueller’s team and raised concerns about accuracy. Barr, however, dealt with Mueller directly, not members of his team. And Mueller, in a phone conversation, did not raise concerns about the accuracy of the attorney general’s March 24 letter.

“I answered the question, and the question was relating to unidentified members who were expressing frustration over the accuracy relating to findings,” Barr told Sen. Patrick J. Leahy (D-Vt.). “I don’t know what that refers to at all. I talked directly to Bob Mueller, not members of his team.”

Crist’s question was broader than that. He asked about the Mueller team’s frustrations with the “limited information” in Barr’s letter. Crist not only asked about the accuracy but also the adequacy of Barr’s letter. As we read it, Mueller’s letter raised concerns about the limited information and adequacy of Barr’s letter.

“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,” Mueller wrote. “We communicated that concern to the Department on the morning of March 25. There is now public confusion about critical aspects of the results of our investigation.”

Barr added in response to Leahy: “Even though I did not know what was being referred to ... and Mueller had never told me that the expression of the findings was inaccurate, but I did then volunteer that I thought they were talking about the desire to have more information put out.” (Again, “thought” not “knew.”)

Referring to Mueller, Barr told Sen. Richard J. Durbin (D-Ill.): “Yes, his concern was he wanted more added. And I would analogize it to this: After a months-long trial, if I wanted to go out and get out to the public what the verdict was, pending preparation of the full transcript, and I’m out there saying, ‘Here’s the verdict,’ and the prosecutor comes up and taps me on the shoulder and says, ‘Well, the verdict really doesn’t fully capture all of my work. How about that great cross-examination I did?’ ”

In response to a question from Sen. John Neely Kennedy (R-La.), Barr said Mueller “wanted to put out the full executive summaries that are incorporated in the report.”

“And I said to him I wasn’t interested,” Barr said. “And by the way, those summaries, even when he sent them, apparently, they actually required, later, more redaction because of the intelligence community. So, the fact is, we didn’t have readily available summaries that had been fully vetted, but I made it clear to him I was not in the business of putting out periodic summaries, because a summary would start a whole public debate. It’s by definition under-inclusive, and I thought what we should do is focus on getting the full report out as quickly as possible, which we did.”

In response to our questions, Kupec, the Justice Department spokeswoman, wrote in an email: “Rep. Crist asked a question about members of the Mueller team, not about Special Counsel Mueller. Special Counsel Mueller wrote the letter. However, during their March 28th follow-up phone conversation about the letter, Special Counsel Mueller told Attorney General Barr that what he had written in his letter was not misleading or inaccurate.

"However, Attorney General Barr still went beyond the question asked and signaled that members of the Mueller team may have wanted more information released (despite their team having turned down an opportunity to review his principal conclusions letter before he sent it out).”

Mueller wrote in terms of “we” and “this office,” referring to himself and his team. Mueller also referenced previous communications between his team and the attorney general. Barr told the Senate Judiciary Committee, “The letter’s a bit snitty, and I think it was probably written by one of his staff people.”

Van Hollen’s question

Mueller spent 182 pages of his report describing evidence that Trump obstructed justice but declined to reach a decision on bringing charges. Barr and Deputy Attorney General Rod J. Rosenstein reviewed Mueller’s report (though not the underlying evidence) and found that Trump did not commit obstruction offenses.

Van Hollen asked Barr: “You made a conclusion on the question of obstruction of justice that was not contained in the Mueller report. ... Did Bob Mueller support your conclusion?” Barr responded, “I don’t know whether Bob Mueller supported my conclusion.”

After The Washington Post broke the news of Mueller’s letter, Van Hollen tweeted: “We now know Mueller stated his concerns on March 27th, and that Barr totally misled me, the Congress, and the public. He must resign.”

Mueller’s letter does not prove that Barr misled Van Hollen. It says Barr “did not fully capture the context, nature, and substance of this Office’s work and conclusions.”

There are two sets of conclusions here, one from Barr and one from Mueller. They were opposed in key ways, but Van Hollen is still conflating things. One question is whether Mueller supports Barr’s conclusion on obstruction charges. That’s what Van Hollen asked. The other question is whether Barr fully relayed Mueller’s conclusions in a letter. The complaint in Mueller’s letter is essentially, “Don’t skew what I said and release the summaries.” That’s different, though not very far from, “I don’t support your conclusions on obstruction.”

Sen. Richard Blumenthal (D-Conn.) asked Barr about all this on May 1. The attorney general said of Van Hollen’s question: “That was not related to my description of the findings in the March 24 letter. That conclusion refers to my conclusion on the obstruction cases. So, it’s a different conclusion.”

Leaving the letter aside, though, it’s clear as day that Mueller and Barr did not see eye to eye on obstruction.

The Mueller report lays out at least four episodes in which prosecutors found that Trump met all the elements of an obstruction offense. One, his efforts to remove Mueller. Two, his efforts to curtail the investigation. Three, his order to former White House counsel Donald McGahn to deny the attempt to remove Mueller. Four, his pardon-dangling remarks about Paul Manafort. (See the chart above and this analysis by Lawfare’s Quinta Jurecic.)

In the end, Mueller said other considerations prevented him from reaching a decision on obstruction charges. These included:

  • A Justice Department policy not to indict the sitting president;
  • Mueller’s view that a “federal criminal accusation against a sitting President would place burdens on the President’s capacity to govern”;
  • Mueller’s view that charges would “potentially preempt constitutional processes for addressing presidential misconduct” (meaning impeachment);
  • Concerns about fairness, since Trump would not have gotten a “speedy and public trial” if Mueller accused him of a crime “when no charges can be brought”; and
  • An inability to clear Trump due to the evidence. “Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him,” Mueller wrote.

Barr said he and Rosenstein ignored the no-indictment policy, adopted Mueller’s legal framework and found that the report did not present sufficient evidence that Trump obstructed justice. Barr said prosecutors are in the business of deciding whether or not to file charges, so he and Rosenstein made the decision when Mueller did not.

“He did not — I didn’t talk to him directly about the fact that we were making the decision,” Barr said in a news conference April 18. “But I am told that his reaction to that was that it was my — my prerogative as attorney general to make that decision.”

At the same news conference, Barr seemed to excuse some of Trump’s attacks and roadblocks of the Mueller investigation by saying that “as the Special Counsel’s report acknowledges, there 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.” Mueller’s report does not say Trump’s anger and frustration mitigated the evidence of obstruction.

We have a big gulf between Mueller’s conclusions on obstruction (pretty damning) and Barr’s conclusions (not damning). It’s natural to infer that Mueller does not support Barr’s conclusions. But it’s also worth noting that this remains an inference for now and that Mueller has not opined directly on Barr’s ultimate decision, as far as the public record shows, anyway. The letter is stinging, but its text challenges Barr’s disclosure decisions prior to the report’s release, not his conclusion on obstruction. Perhaps the special counsel will give his own account to the public at some point.

“Remember, Mueller specifically chose not to exonerate Trump on the question of obstruction of justice,” said Bridgett Frey, a Van Hollen spokeswoman. “Barr did that in his four-page summary two days after receiving the Mueller report.”

She added: “You cannot disentangle Mueller’s concerns with Barr’s portrayal of his conclusions on obstruction of justice from the conclusions that Barr drew from the report on the question of obstruction of justice. That’s why Senator Van Hollen has characterized Barr’s testimony as misleading and said we need to hear from Mueller to more fully understand his concerns. An open and honest answer from Barr would have acknowledged the concerns Mueller had raised with him.”

Kupec said: “It is evident to anyone who watches the exchange or reads the transcript that Senator Van Hollen was asking whether Special Counsel Mueller supported Attorney General Barr’s decision on obstruction (the decision that Special Counsel Mueller did not make). Attorney General Barr said he didn’t know what Special Counsel Mueller’s opinion is on his decision. That is true.”

The Pinocchio Test

Crist raised concerns about the “limited information” in Barr’s letter and asked about its accuracy and adequacy.

Barr said that he didn’t know what the Mueller team was referring to and that he suspected they wanted more information out in public. It strikes us as a disingenuous and misleading response because, by that point, Mueller clearly had manifested his office’s concerns to Barr about the limited information in the attorney general’s March 24 letter, and had asked Barr to release the introductions and executive summaries in his report.

The special counsel’s March 27 letter stated that Barr “did not fully capture the context, nature, and substance of this Office’s work and conclusions” and that “there is now public confusion about critical aspects of the results of our investigation.”

Confronted with this, Barr said Crist’s question did not encompass Mueller’s complaints because the congressman was asking about members of Mueller’s team, not Mueller himself, and because the special counsel did not express qualms about the accuracy of Barr’s letter. To state the obvious: Mueller is a member of his own team. He was writing on behalf of his office and framed his letter that way. Crist asked about the “limited information” in Barr’s letter and its adequacy, not just its accuracy. Raising the concerns in Mueller’s letter would have been an apposite response to Crist.

As for Van Hollen’s question, Barr accurately pointed out to the Senate Judiciary Committee that Mueller’s letter did not directly challenge Barr’s conclusion on obstruction. Instead, it criticized Barr for not fully disclosing Mueller’s conclusions. Of course, looking at the report itself, it’s clear the two longtime lawmen have starkly different views on whether Trump obstructed justice. In this sense, Barr’s response to Van Hollen was arguably misleading, though Mueller so far has not made public comments directly challenging Barr’s conclusion.

Questions about misleading testimony under oath are for others to decide. We give some credit to Barr because, in the end, he made the call to release the Mueller report, and the Justice Department also released Mueller’s stinging letter from March 27. Nevertheless, these twists and turns in congressional testimony are worth Three Pinocchios.

Three Pinocchios

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“No, I don’t [know what special counsel Robert Mueller's team was complaining about in news reports]. 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.”
in a House hearing
Tuesday, April 9, 2019