It was one of the most dramatic cases of potential obstruction of justice laid out by federal investigators: President Trump directing the top White House lawyer to seek the removal of special counsel Robert S. Mueller III — and then later pushing him to deny the episode.
It was a surprise recasting of the account of then-White House counsel Donald McGahn, who told investigators that Trump called him twice in June 2017 at home, pressuring him to intervene with the Justice Department to try to get Mueller removed. McGahn told federal investigators that he planned to resign rather than comply. And he said he later refused a demand by Trump that he write a letter denying news accounts of the episode.
In Barr’s telling, however, Trump may have merely been trying to correct media reports he believed were inaccurate. He cited the president’s public explanations of his behavior — even though the president refused to provide testimony about it under oath. And he discounted as weak the case that Trump’s actions were part of a criminal effort to thwart a federal investigation — despite the fact that Mueller said in his report that “substantial evidence” indicated the president was acting to prevent scrutiny of his conduct in the obstruction inquiry.
“It would be difficult for the government to prove that beyond a reasonable doubt,” Barr said of the idea that Trump was trying to get McGahn to create a fraudulent record to fend off prosecutors. “There are very plausible alternative explanations.”
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In a day of sometimes prickly testimony, the focus on Barr’s view of the McGahn episode provided the most revealing look yet at Barr’s rationale for determining there was not sufficient evidence to charge Trump with trying to thwart the probe.
Over and over again, the attorney general expressed skepticism about the evidence laid out in the special counsel report, which detailed 10 episodes of possible obstruction by the president. In four cases, Mueller cited “substantial” evidence to support charges.
The special counsel declined to offer an assessment of whether Trump’s actions amounted to a crime. But at the end of his 448-page report, Mueller pointedly wrote, “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state.”
Mueller had conservatively hewed to a Justice Department opinion that says a sitting president cannot be prosecuted, determining that such a decision meant he also could not accuse Trump of criminal conduct. But legal experts said that the evidence detailed in the special counsel report would normally warrant bringing charges.
Jessica Levinson, professor at Loyola Law School in Los Angeles, said Barr’s dismissal of strong evidence of obstruction in the McGahn episodes “strains common sense” and raises concerns that he is acting in bad faith.
“For the attorney general to say, ‘There’s no there there,’ is entirely consistent with what he’s been saying, but it is against the explicit findings of the Mueller report,” Levinson said.
McGahn’s lawyer, William Burck, declined to comment.
Democrats accused Barr of playing down Mueller’s findings and serving as the president’s protector.
Sen. Amy Klobuchar (D-Minn.), a former prosecutor, was among those on the Senate Judiciary Committee who questioned the attorney general’s conclusion that there was no obstruction-of-justice case against the president.
“You look at the totality of the evidence,” she said. “That’s what I learned when I was in law school.”
“There’s ample evidence on the other side of the ledger,” Barr countered later.
He repeatedly said to the committee that because Trump had the constitutional authority to fire Mueller, proving he was driven by a motive to block the investigation is incredibly difficult.
“In this kind of situation, where you have a facially innocent act that’s authorized by the Constitution, it’s hard to establish beyond a reasonable doubt that it’s corrupt,” Barr said.
The attorney general also repeatedly emphasized evidence and legal theories that put the president in the best light.
He suggested that Trump had not actually directed McGahn to seek Mueller’s removal when the president urged him to call Deputy Attorney General Rod J. Rosenstein and tell him the special counsel had conflicts of interest that should prevent him from serving. McGahn told investigators that he recalled the president saying at one point, “Mueller has to go,” and “Call me back when you do it.”
But Barr said Trump might have been merely passing along a concern.
“The president later said that what he meant was that the conflict of interest should be raised with Rosenstein, but the decision should be left with Rosenstein,” Barr said.
And even if Trump had wanted Mueller removed because of conflicts, Barr said, that wasn’t criminal. It would have led to naming a new special counsel, not the end of the investigation.
Democratic senators reacted incredulously.
Sen. Richard J. Durbin (D-Ill.) complained that Barr was trying to stage some complicated “Kabuki dance” to distract from the copious evidence that Trump’s instructions to McGahn rose to the level of criminal conduct.
“I think the president’s intent was very clear. He wanted this to end,” Durbin said of the Russia investigation. “Over and over again, this president was very explicit.”
Mueller’s report notes that Trump’s calls to McGahn in June 2017 were part of an ongoing effort to get rid of the special counsel.
“McGahn spoke with the President twice and understood the directive the same way both times, making it unlikely that he misheard or misinterpreted the President’s request,” the special counsel wrote, describing the former White House counsel as a credible witness with no motive to lie.
After the New York Times published a story in February 2018 saying Trump ordered McGahn to fire Mueller, the president told McGahn he needed to write a letter denying the stories, according to the report.
In a tense Oval Office meeting, McGahn stood his ground.
“Did I say the word ‘fire?’ ” Trump asked McGahn, according to the report.
“What you said is, ‘Call Rod [Rosenstein], tell Rod that Mueller has conflicts and can’t be the Special Counsel,’ ” McGahn responded.
“I never said that,” Trump said.
Barr told the Senate panel Wednesday that “it could also have been the case that . . . he was primarily concerned about press reports and making it clear that he never outright directed the firing of Mueller.” He said that Trump may have had a valid reason to press about Mueller’s potential conflicts of interest.
But the special counsel’s report noted that very concern had been shared days earlier with Justice Department officials by the president’s personal attorney.
Levinson, the law professor, said McGahn’s account, told to investigators under penalty of false statements, is the one to credit.
“This is not a he-said, he-said between equal narrators,” she said.
Barr did not mention another factor that the Mueller team believed negated the theory that Trump was only worried about the bad press. The president persisted in trying to get McGahn to create a written record but was not making an effort to seek a correction in the Times story, the report said.
“The evidence . . . indicates the President was not focused solely on a press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it,” the report said.
Barr also sought to give Trump the benefit of the doubt in his request that McGahn deny he sought Mueller’s removal, saying the president may have genuinely believed the account was false.
“I think it would be plausible that the purpose of McGahn memorializing what the president was asking was to make the record that the president never directed him to fire [Mueller]” Barr said.
The attorney general cited another potential explanation for the president’s actions: Trump, he said, had been “falsely accused” of conspiring with Russia through his campaign. It wouldn’t be a crime to seek to replace an independent counsel if Trump “felt that this investigation was unfair, propelled by his political opponents and was hampering his ability to govern.”
Alice Crites contributed to this report.