1. The lack of an underlying crime
The first is his emphasis on the supposed lack of an underlying crime. I flagged this when he included it in his initial letter about the Mueller report. He suggested that the lack of a conspiracy with the Russian government was a mitigating circumstance when it came to whether Trump obstructed justice. As a result, he decided not to accuse Trump.
He returned to this point in his testimony Wednesday.
“Well, generally speaking, an obstruction case typically has two aspects to it. One, there’s usually an underlying criminality,” Barr said, before being cut off. He went on: “It’s not necessary, but the typical — sort of the paradigmatic case is, there’s an underlying crime, and then the person implicated or people implicated are concerned about that criminality being discovered, take an inherently malignant act, as the Supreme Court has said, to obstruct that investigation, such as destroying documents.”
As he does in his letter, Barr is careful to emphasize that this is not a necessary component. But he repeatedly brings it up, which suggests he believes it mattered in this case.
“What is the impact of taking away the underlying crime?” he mused at one point. He later returned to it and said: “The point I was trying to make earlier is that in the situation of the president, who has constitutional authority to supervise proceedings — if in fact a proceeding was not well-founded, if it was a groundless proceeding, if it was based on false allegations, the president does not have to sit there, constitutionally, and allow it to run its course.”
The experts I talked to said Barr’s emphasis of this point was odd. There is also the fact that crimes were uncovered in this investigation — just not one for conspiring with Russia.
But even if you set those aside, the Mueller report itself seems to rebut Barr’s point — rather directly. Here’s the key section:
As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.
That looks a whole lot like Mueller dismissing the importance of the lack of a provable conspiracy with Russia.
Barr did bring this section up in his testimony, but only briefly, and he quickly dispensed with it — again arguing that this could simply be about Trump reacting to false allegations. But Mueller seems to place much more weight on other very plausible, corrupt motives for Trump’s obstructive acts. In fact, he outlines at least five events in which he says the evidence supports the three key criteria for obstruction, including a corrupt intent.
2. Mueller’s private obstruction comments
The second strange claim Barr keeps revisiting is Mueller’s private comments about whether he found a crime. Mueller in his report said he was not making a “traditional prosecutorial judgment” on that point, but he said it was because of Justice Department Office of Legal Counsel (OLC) policy against indicting a sitting president — not the evidence.
Barr said in his news conference before the release of the Mueller report: “We specifically asked him about the OLC opinion and whether he was taking a 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 was not saying that, but for the OLC opinion, he would have found a crime."
Barr echoed this twice in his Wednesday testimony: “Special counsel Mueller stated three times to us in that meeting in response to our questioning that he emphatically was not saying that, but for the OLC opinion, he would have found obstruction."
That sounds a lot like Barr saying, Mueller admitted that the evidence wasn’t there on obstruction. But a close examination of Barr’s account indicates that was not really what Mueller was saying. According to Barr’s version, Mueller merely said he had not made a private determination that there was obstruction. And it’s entirely possible that was because he decided it simply was not his place to do so.
But let’s say, hypothetically, that Mueller did, in fact, decide that proof of obstruction simply wasn’t there. Why would he say that and allow Barr to broadcast it? It would seem to defeat the purpose of saying you’re not making a traditional prosecutorial judgment if you’re just going to make that judgment known outside the context of the report.
We’ll have to wait and see what Mueller says, if and when he testifies. But it looks a whole lot like he was simply saying that he had not even attempted to decide if Trump’s actions were criminal, and he did not attempt to do so because it was not his job. Yet Barr keeps bringing it up in ways that make it sound like Mueller found the evidence to be insufficient.