During a briefing at the Justice Department about three weeks ago, special counsel Robert S. Mueller III made a revelation that those supervising his work were not expecting, a person familiar with the matter said: He would not offer a conclusion on whether he believed President Trump sought to obstruct justice.
The decision — which a Justice Department official on Monday said the special counsel’s office came to “entirely” on its own — left a gap ripe for political exploitation.
After accepting Mueller’s report, Attorney General William P. Barr and Deputy Attorney General Rod J. Rosenstein, who were among those briefed March 5, made the call Mueller would not, determining that the evidence was insufficient to allege that Trump had obstructed justice. The decisive maneuver, outlined in a letter Barr sent to lawmakers this week, sparked allegations that the two Trump appointees had rushed to a judgment no one asked them to make, and it is likely to be a key battleground in the intensifying political fight over the conclusion of Mueller’s work.
A day after Barr revealed Mueller’s principal conclusions — namely, that the special counsel did not establish any coordination between Trump and Russia on election interference, and found a mixed bag on the question of obstruction — Democrats attacked the attorney general and issued an April 2 deadline for him to turn over a copy of the report, while Republicans said Trump should be given an apology.
Some current and former law enforcement officials, meanwhile, said privately they were puzzled as to why Mueller ended his work without a firm recommendation on obstruction. Trump, who had repeatedly derided the investigation as a “witch hunt,” said Monday, when asked if Mueller had acted honorably: “Yes, he did.”
Barr continued to scrub grand jury material from Mueller’s report so it might one day be turned over to lawmakers eager to read the special counsel’s findings. A person familiar with the matter said there were no current plans to turn over the document to the White House, which still had not seen it Monday. The person, like others interviewed for this report, spoke on the condition of anonymity to discuss internal White House and Justice Department matters.
White House officials are not automatically planning to ask for the report, according to two people familiar with the situation, though it is possible they would one day want to do so — mindful that the section on obstruction might include privileged discussions, such as Trump’s communications with former White House counsel Donald McGahn. White House advisers believe it is possible that Barr will decide he needs to share a copy with the White House to seek input on privileged discussions.
On Monday, Trump told reporters that “it wouldn’t bother me at all” if the Mueller report were released but said that decision is up to the attorney general. He also suggested that those behind the investigation should be investigated for their own conduct.
“They’ve done so many evil things,” the president said, without specifying whom he believed should be investigated. “It was a false narrative, it was a terrible thing. We can never let this happen to another president again. I can tell you that. I say it very strongly. Very few people I know could have handled it. We can never ever let this happen to another president again.”
It was not immediately clear when Barr might be able to turn over the report — or some portions of it — to lawmakers and the public. After the Justice Department closed its investigation into Hillary Clinton’s use of a private email server as secretary of state, it took about two months for substantive documents from that case to be released. But lawmakers began discussing plans Monday to have Barr testify on Capitol Hill.
The House Appropriations Committee has tentatively set a hearing for April 9 on the Justice Department budget, though other committees may seek to request Barr’s appearance before then.
Sen. Lindsey O. Graham (R-S.C.), who spoke to Barr on Monday, said the attorney general told him he would be “glad” to appear before the Senate Judiciary Committee to discuss the special counsel’s findings, but not before he could determine what should be redacted from the report. Graham, who chairs the committee, said he urged Barr to release as much of the report as he can “sooner rather than later.”
Barr, Graham said, indicated that he would have to speak with Mueller first “because Mueller is the guy that does the grand jury stuff, because they’re the ones that did the grand jury investigation.”
“I hope it’d be much before months, and not longer than a few weeks,” Graham said.
The best window into Mueller’s probe that lawmakers and the public have so far is the four-page letter Barr released Sunday that summarized the confidential report concluding Mueller’s nearly two-year investigation.
On coordination, Barr indicated that Mueller wrote in his 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.”
But on obstruction, Barr offered mixed sentiments. He wrote that Mueller “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” Mueller’s report itself said pointedly, “while this report does not conclude that the President committed a crime, it also does not exonerate him,” according to Barr’s account.
The attorney general, though, went further, writing that he and Rosenstein “concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”
“Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president,” Barr wrote.
In an interview with Fox News Radio, Trump’s former personal lawyer John Dowd said it was “unprofessional” for Mueller not to have made a clear determination that Trump should not be prosecuted for obstruction of justice.
“Your job is to decide,” he said, adding, “There was no evidence of obstruction here.”
Democrats took a different tack. Before he became attorney general, Barr submitted to the Justice Department an 18-page memo highly critical of what he surmised was Mueller’s theory for how the president obstructed justice. Barr has noted that he did so without inside knowledge of the probe, and he has asserted that the document was “narrow in scope.”
But his critics have suggested that his dim view of that aspect of Mueller’s work might have helped him land the attorney general job.
Rep. David N. Cicilline (D-R.I.) said Monday that he thought it was “completely inappropriate” for Barr to have concluded that Trump did not obstruct justice, and that the attorney general was trying to “shape the narrative” unfairly.
Mueller “doesn’t make a conclusion, but he goes out of his way to say the president is not exonerated in this regard, and Mr. Barr in 48 hours turns that around and says: ‘Oh no, I’ve looked at it. He’s exonerated. He hasn’t committed that offense,’ ” Cicilline said on CNN.
Since his appointment in May 2017 as special counsel, Mueller wrestled with the question of whether Trump attempted to obstruct justice once the FBI began investigating those close to him. Current and former White House officials who were questioned by Mueller’s investigators were repeatedly asked how the president spoke about the inquiry behind closed doors and whether he sought to replace senior Justice Department officials to stymie the investigation, according to people familiar with the interviews.
A person familiar with the matter said the obstruction case was always “the most difficult element” for Mueller’s team because demonstrating a person’s intent is one of the toughest assignments for federal prosecutors — and because the person under scrutiny was the president of the United States. His actions, the person said, have far different legal meanings and repercussions because of his office and the constitutional protections and powers that come with it.
Barr wrote that Mueller “ultimately determined not to make a traditional prosecutorial judgment” on the question of obstruction and that his 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, each of which, under the Department’s principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.”
Barr noted that many of the president’s actions “took place in public view,” and he wrote 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.’ ” That factor, Barr wrote, “bears upon the President’s intent with respect to obstruction.”
The letter does not make clear whether Mueller asked Barr and Rosenstein to make a final determination on the question of obstruction or whether he intended to leave that to another body, such as Congress.
Mueller concluded his work without ever interviewing Trump — who answered written questions — or issuing a subpoena to compel his testimony. A person familiar with the matter said the special counsel’s team discussed the subject extensively, with the office’s top lawyers, including Michael Dreeben, James Quarles, Aaron Zebley and Mueller, most engaged in the discussions.
Those talks centered on whether it was legally feasible and what the costs of a subpoena might be to the overall investigation, the person said.
The special counsel’s team went back and forth with Trump’s representatives, through multiple iterations of the president’s legal team. They were hopeful, the person said, that Trump would meet voluntarily but mindful that they could not explicitly threaten a subpoena unless they were prepared to issue one.
Over the course of his investigation, Mueller charged 34 people, including several Trump associates, and the vestiges of his work live on. Prosecutors in the U.S. attorney’s office for the District of Columbia took over some cases, including the matter of a mystery foreign company that resisted a subpoena from Mueller’s office and took its battle all the way to the Supreme Court.
Notably, the court said Monday that it would not review a lower-court order requiring that corporation to comply with Mueller’s subpoena.
Rachael Bade, Mike DeBonis, Seung Min Kim, Rosalind S. Helderman and Spencer S. Hsu contributed to this report.