Reader weighs in on a national discussion


On March 24, 2019, Attorney General (AG) William Barr wrote a letter to Congressional leaders and to the public stating that this was his summary of the Special Counsel’s (SC) findings.

The AG’s letter summarized to Congress and the public that the SC did not find any illegal actions on the part of President Trump, or any members of his campaign, in conspiring with Russia’s interference in the 2016 presidential election. In addition, the letter relayed the Attorney General’s conclusion there was insufficient evidence to find the president guilty of obstruction of justice charges. See:

SC Mueller responded in a letter to AG Barr complaining that the AG’s March 24 letter “failed to capture the full context, nature and substance of this office’s work and conclusions.”

To understand SC Mueller’s assertions, I inserted alternative language taken directly from his report and inserted them into the framework of the AG’s March 24 letter. Hopefully, this shows how differing excerpts taken from the same report can be used to spin and shape a different picture.

AG Barr could have written the following summary that accurately reflects SC Mueller’s report:

• The Special Counsel’s report

Although my review is ongoing, I believe that it is in the public interest to describe the report and to summarize the principal conclusions reached by the SC and the results of his investigation. In May of 2017, the Executive Branch of the United States appointed SC Robert S. Mueller III to investigate “the Russian government’s efforts to interfere in the 2016 presidential election,” including any links or coordination between the Russian government and individuals associated with the Trump Campaign. The SC and his staff thoroughly investigated allegations, that members of the presidential campaign of Donald J. Trump, and others associated with it, conspired with the Russian government in its efforts to interfere in the 2016 U.S. presidential election.

• Russian interference in the 2016 U.S. presidential election:

The SC found that “Russia interfered in the 2016 Presidential election in a sweeping and systematic fashion.” While, “[t]he investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russia efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

The SC made these findings amidst the multiple offers from Russian-affiliated individuals to assist the Trump campaign. The SC also concluded that “some of the individuals interviewed or investigated — including some associated with the Trump Campaign — deleted relevant communications or communicated during the relevant periods…” “The SC’s report “could not rule out the possibility that the unavailable information would shed additional light on (or cast in a new light) the events described in the report.”

• Obstruction of justice:

After making a “thorough factual investigation” and given that the SC is part of the Department of Justice, the SC:

(1) elected not to, in accordance with OLC opinion, “…place burdens on the President’s capacity to govern … and potentially preempt constitutional processes for addressing presidential misconduct.”

(2) concluded that despite the OLC’s opinion that a sitting President may not be prosecuted, the OLC recognizes that a criminal investigation during the President’s term is permissible. The OLC opinion also recognizes that, “…a President does not have immunity after he leaves office. And if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.”

(3) “…determined not to apply an approach that could potentially result in a judgment that the President committed crimes … [f]airness concerns counseled against potentially reaching that judgment.”

(4) stated that “if it had the confidence, after a thorough investigation of the facts, that the President clearly did not commit obstruction of justice,” the SC would have so stated.

SC Mueller also sought a voluntary interview with the president. After more than a year of discussion, the president declined to be interviewed. Instead, “the President submitted written responses” “that did not answer those questions about Trump Tower Moscow directly and did not provide any information about the timing of the candidate’s discussions with Cohen about the project or whether he participated in any discussions with Cohen about the project or whether he participated about the project being abandoned or no longer pursued.” Moreover, “the President stated on more than 30 occasions that he does not recall or remember or have an independent recollection of information called for by the questions.”

• Legal defenses to the application of obstruction-of-justice statutes to the president:

The President’s defense counsel submitted arguments that a core obstruction-of-justice statute, 18 U.S.C. § 1512(c)(2), does not cover the current President’s actions. The SC reviewed the president’s proposed interpretation of Section 1512(c)(2) and found the president’s interpretation was “contrary to the litigating position of the Department of Justice and was not supported by principles of statutory construction.”

In addition, the SC concluded, while the Department of Justice nor the courts have made specific opinions addressing whether Article II of the Constitution does or does not categorically and permanently immunize the president from potential liability for any corrupt efforts associated with Article II powers. Using what the SC cited as relevant court findings, the SC deduced that “…the obstruction-of-justice statutes can validly prohibit a President’s corrupt efforts to use his official powers to curtail, end, or interfere with an investigation.”

(If AG Barr had taken and used the above language from the report for his March 24 summary letter, imagine the different stir that would have been created.)

• Two different prosecutorial judgements

SC Mueller did not make a traditional prosecutorial judgment on the president’s obstruction of justice matter. Nonetheless, he concluded, “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgement…” Accordingly, “…while this report does not conclude that the President committed a crime, it does not exonerate him.”

Without resolving these difficult issues but accepting the evidence as presented in the report, AG Barr made his own prosecutorial judgement. His March 24 letter stated: “[a]fter reviewing the SC’s final report on these issues; consulting with Department officials, including the OLC; and applying the principles of federal prosecution that guide our charging decisions, Deputy Attorney General Rod Rosenstein and I have 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.”

Many have spoken out, insisting that the AG made misleading/untrue statements to the public and Congress. That he knew, without revealing, SC Mueller had some basic misgivings with the March 24 letter. First, prior to his testimony, Barr had received two letters from the SC. Secondly, Mr. Barr testified that he initiated a call to Mr. Mueller and started the conversation with: “Bob, what is up with the letters?” Third, the Attorney General had reviewed SC Mueller’s report, which obviously contained different views.

Why did the AG claim he was not aware if the SC concurred with his actions/findings? As indicated above, he had already heard from SC Mueller. Was it because he wanted to spin SC Mueller’s findings to favor President Trump? It was not until April 18 that the public was presented with the SC’s redacted report. From March 24 thru April 18, the public heard only one version: the message that President Trump wanted us to hear.

President Trump and his advocates would have had difficulty with the initiation of their “no collusion delusion, no obstruction, no nothing” campaign with the public being aware of the conflicting message in the SC’s report. The alternative language in the “Obstruction of Justice” section makes clear that OLC’s policy “of not indicting a sitting president” played the primary role in the SC’s decision not to bring criminal charges against the President — contrary to AG Barr’s Senate testimony.

As SC Mueller indicated, the president’s actions, along with the abundance of substantial evidence, indicate difficult issues remain and still need to be resolved. Despite Republicans’ contrary claims, this case should not be closed!


Ken Niehaus

Ocean View