WRECKING BARR

Donald Trump is the granite boulder against which reputations are smashed. William Barr’s is the latest in a long series.

Barr - proved unworthy of his reputation

Prior to his confirmation as attorney general, Barr was thought of by many on both sides of the congressional aisle—despite his obsequious spinning and justifying of criminal behavior witnessed in the Iran-Contra affair under both the Reagan and George H.W. Bush administrations—as a sound constitutionalist and legal scholar, as well as a “straight-shooter” who could be counted on to carry out his duties as the nation’s  highest-ranking law enforcement officer with unyielding adherence to the necessary objectivity and independence of that post. But in light of his performance in handling the Mueller Report, Barr has proven himself to be unworthy of the high regard in which he was previously held.   

Generals Kelly and McMaster - too much, too long

Noteworthy among earlier alleged “adults in the room” who trashed their good names before, far too belatedly, abandoning the Trump camp are generals John Kelly and H.R. McMaster. In both cases, they were broadly seen as patriots and men of good faith who joined and remained in the Trump administration, more than anything else, as a means of guiding a clueless president along a legal and legitimate path in a complex world that he was loath to comprehend, while acting as “damage control” whenever it proved impossible to sway Trump from the designs of his most disastrous policies.

Be that as it may, both men overstayed their usefulness to the United States in this sense and ended up trying, against their better judgment, to justify the administration’s madness rather than frontally opposing it and, eventually, only after sullying what, in both cases, had been stellar records, decided they could no longer remain at odds with their own ethics and resigned. Too late, as it turns out, not to be splashed by the blowback from Trump’s lies and his hostile relationship with the Constitution and the rule of law.

Latest news updates regarding the two-year Mueller investigation and Barr’s presentation of it to the public suggest that the attorney general has forsaken the responsibilities of his office and scotched his good name in the legal and political community by acting, not as the representative of constitutional law and order, but as a partisan Trump surrogate.

A few corroborating facts:

 - On March 24, William Barr prefaced the release of a redacted version of the Mueller Report with a four-page letter, described at the time as “a summary” of the report’s contents, in which he issued the opinion (stated as fact) that the special counsel’s findings demonstrated no collusion by the president and his 2016 campaign team with the Russian government in its interference in the general elections, nor did they demonstrate any attempt by the president to obstruct justice by seeking to squelch an investigation into Russian interference and Trump-team collusion with it.

 - The government pushed this narrative with the president calling the report a “complete and total exoneration” and repeating the words “no collusion, no obstruction” ad nauseam following publication of the attorney general’s four-page tone-setting message.

 - On March 27, Special Counsel Mueller is reported to have written to Barr protesting the attorney general’s roll-out of the report. A long-time acquaintance of Barr’s, Mueller pulled no punches. The fact alone that the special counsel wrote a memo to Barr is a very big deal, since Robert Mueller’s sound reputation as one of the last true “boy scouts” in Washington would have precluded any interference with the attorney general’s handling of the report that, as per protocol, he turned over to the Department of Justice on conclusion, had Barr properly addressed the investigation’s findings. According to an article in The Washington Post, Mueller challenged Barr’s four-page public statement, complaining that it did not reflect the “context, nature or substance” of the report’s contents.

Mueller - not amused

 - The next day, Barr and Mueller are understood to have had a fifteen-minute telephone conversation. And the day after that, Barr wrote a memo to Congress saying that his four-page letter of March 24 shouldn’t be taken as “a summary” of the report. Clearly, this was because he had been unable to convince Mueller that the letter was anything but an attempt to spin the true findings of the report before it was released to the public. Barr knew full well that the vast majority of the US public would never peruse the details of the 440-page report except as chewed up and digested sound bites on their favorite news media—which would have vastly different interpretations across the spectrum between, say, Fox News and CNN.

 - Barr’s intention to continue to set a pro-Trump tone for release of the Mueller Report was apparent in his stalling of its release for over two weeks, while Trump and surrogates, including himself, used the time to hammer away at the no-collusion-no-obstruction narrative and to fabricate a conspiracy theory that the real idea behind the investigation had been to stage “a coup” to bring down the administration.  

 - On April 10, Barr gave Senate testimony regarding the Mueller Report. During that testimony, he lied when asked if Mueller supported his assessment of the report as per his four-page letter of introduction, saying that he didn’t know if Mueller supported it. Clearly, Mueller had already told him both by memo and probably by phone, that he vigorously disagreed with the attorney general’s interpretation, saying that Barr’s letter had created “critical confusion” among the public.

 - Barr finally delivered the Mueller Report to Congress and the public on April 18. But not without holding a pre-release press conference during which he renewed the no-collusion-no-obstruction narrative as if to further establish a pro-Trump tone among those who would never actually read the report, among whom Trump’s staunchest base could almost certainly be counted.

 - Once the report was released, and despite the attorney general’s redactions, it was obvious to any objective observer that Barr had purposely sought to mislead the public regarding the contents and conclusions. Among other things, it was clear that Mueller and his team had found multiple examples of what could be considered collusion—numerous instances of the Russian government offering its help to the Trump campaign and of Trump surrogates demonstrating enthusiastic interest in that help rather that reporting attempts by a hostile power to influence US elections to the FBI—and that the president did indeed seek to obstruct justice but was at least minimally saved from himself by aides who merely ignored and disobeyed his orders, as well as by current DOJ rules holding that a sitting president couldn’t be indicted. The report further and implicitly invited Congress to investigate and, if politically expedient, impeach the president, stating specifically that the investigation in no way exonerated Trump.

As a side note, it is interesting to recall that Barr’s predecessor, Jeff Sessions, faced an uphill battle in his confirmation as attorney general. Sessions was viewed by many as not only a Trump surrogate but also as a long-time political manipulator, a racist bigot and a good ol’ boy with an, at best, ambiguous relationship with the moral high ground. He was expected to be a loyal Trump servant and to do the president’s bidding with no regard for the required impartiality and legal tenets of his office.

Sessions - unlikely adult in the room

Against all odds, however, and no matter what one might think of Jeff Sessions’ civil rights record, he turned out to be a much more mindful and independent attorney general than Barr is proving to be. Sessions incurred Trump’s rage and disfavor by recusing himself with regard to the investigation of ties between Russia and the Trump campaign, because he admitted to having had contact with the Russians.

Sessions maintained the independence of the Department of Justice, even despite overwhelming pressure for him to demonstrate loyalty to the president over loyalty to the nation or to resign. Barr, on the contrary, was practically a shoo-in for the post, despite having written a paper shortly before his nomination the basic premise of which was that sitting presidents couldn’t be indicted and that obstruction wasn’t obstruction if the president committed it (a.k.a. the Nixon defense). Politicians on both sides of the aisle saw Barr as a brilliant lawyer and as a man of law. But since then, he has delighted Trump and his base by proving just the opposite, by basically showing himself to be, in contemporary street vernacular, “Trump’s bitch.”

There can be little doubt that Robert Mueller has held himself to a higher standard in his role as special counsel in charge of the investigation into obstruction of justice, Russian interference in the US election process, and possible collusion between American political agents and the Russian government. Barr, meanwhile, has shown himself to be disingenuous and politically prejudiced to the detriment of the very American justice that he is sworn to uphold.

THE MUELLER REPORT—AS I SEE IT

During the highly divisive debate over the past two years to which the Department of Justice investigation into presidential abuse of power, obstruction of justice and conspiracy with a hostile foreign power has given rise, moderates on both sides have cautioned their more radical peers to stop trying to second-guess Special Counsel Robert Mueller and wait for his report. Wait, we have, but the release of the report this week holds out no promise of an end to the discussion. On the contrary, it opens up new questions on which defenders of the two juxtaposed positions regarding the latest US administration are bound to bitterly clash.

When then-Attorney General Jeff Sessions told Donald Trump in May of 2017 that prosecutor Robert Mueller was being appointed by the DOJ to look into allegations of obstruction and collusion, the president is reported to have said, “This is terrible. This is the end my presidency. I’m fucked!” The best one could surmise about such statements is that the president might have been unwarrantedly paranoid about the legal process within the US justice system—considering his unfamiliarity with the Constitution, Federal law or the truth. But it would appear, rather, that Trump was genuinely worried about how exposed he was to such an investigation because there really was a “there there” under these headings.

The 400-page Mueller report indeed confirms a “there there”, despite Attorney General William Barr’s best efforts to downplay it, to the chagrin of Republicans and Democrats alike. The Republicans, because it implies that the Mueller Report is not an end to a controversy, but just the beginning. The Democrats, because Special Counsel Mueller has effectively punted to them, and how they receive the ball and run with it is likely, one way or another, to affect their performance in the 2020 elections.

I received the report through a friend in New York while it was still hot off the press and have galloped through it since then. I’m a slow and careful reader, so I’m sure that I’ll have more to say on this investigation in the future. But my first look has led me to certain concrete preliminary conclusions that, for what they’re worth, I am sharing below. But one of the main ones is that no matter how carefully the investigation was carried out or how many truths it has uncovered, the GOP is bound, by and large, to continue to contend that it isn’t what you know but what you can prove (or that it’s all about the privileges the office of the president provides), while Democrats will argue that the report reveals exactly what they expected it to reveal and that if the president isn’t indicted it’s only because, under the law, he can’t be.

Here are a few other first impressions I’ve formed in scanning the redacted Mueller Report:

 - The US media, which the president and his base have gone out of their way to insult and try to discredit, have done their job admirably with regard to the misdeeds of the Trump administration and of the president himself. My main reason for arriving at this conclusion is that little if any of the special counsel’s report comes as a surprise to anyone who has been closely following the mainstream news. Papers like the The New York Times and The Washington Post have done a particularly good job of reporting over the past couple of years, as have magazines like The New Yorker and The Atlantic, and news sites such as Politico and The Daily Beast, among others.

 - The Mueller Report is not the end of anything, but the beginning. In one passage of the report the special counsel practically extends an invitation to Congress to investigate further and possibly impeach the president. According to legal experts making statements to the media the day after the report’s release, there appear to be more than a dozen potential prosecutions arising from the report. And Mueller has alerted other departments and agencies to them.

 - Since receiving the Mueller Report, Attorney General William Barr has sought to mislead the country about its contents. In his four-page preliminary summary of the report and in the press conference that he held on its release, he carefully trimmed his conclusions to leave out “the bad stuff” and to concentrate on vindication for the president. He even went as far as to give his own opinion with regard to the “obstruction and collusion” issues, with an eye toward prejudicing the GOP base in full favor of Trump and toward undermining the morale of Democrats and some Republicans who were hoping for conclusive evidence of both things. Barr’s ministrations on behalf of Trump were inconsistent, we now know, with the contents of the report.

In this sense, and combined with his unfounded allegations of deep-state “spying” on the 2016 Trump campaign, Barr is showing himself to be precisely what skeptics thought him to be when he took over from former AG Jeff Sessions: a Trump “hired gun”, a legal eagle with clear partiality and at the personal service of Donald Trump, not a true attorney general serving the interests of the people of the United States as a whole. Those who thought Barr was “a straight-shooter” or an impartial purveyor of balanced justice will be disappointed. But those of us who were aware of his past actions in government know that his specialty is obfuscation.

Indeed, it was Barr (along with other colleagues), who was one of those called in as a “cleaner” during investigation of the Iran-Contra affair under the administration of George H.W. Bush. Those investigations were being handled by Independent Counsel Lawrence Walsh. Walsh, like Mueller, was a Republican who had earned a well-deserved reputation for professionalism. The job for which Barr and his associates were brought in was the effective short-circuiting of that probe into “conspiracy among the highest-ranking Reagan administration officials,” which included by then President Bush. And they did their job well, conjuring up ways to suppress evidence, and thus shield top officials like Defense Secretary Casper Weinberger—co-defendant along with six others in the investigation— and, indeed, Presidents Reagan and Bush. Bush would eventually issue highly controversial pardons to the seven defendants, thus effectively halting Walsh’s probe and the legal jeopardy to which he and Reagan were exposed in its tracks.

- The Mueller report could not establish that the Trump electoral campaign directly colluded with the Russian government to subvert the 2016 presidential elections so as to swing them in favor of Trump. But it wasn’t for lack of trying. The report indicates that the Russians repeatedly reached out to the Trump campaign and that campaign officials including Trump’s son, Don Jr., did indeed show interest in the Russian overtures. This in itself is at least ethically questionable behavior, since a more politically savvy and democratically honest team would have immediately made the candidate aware of what was going on and urged him to go to the FBI to let the agency know that Russian intelligence was seeking to influence the outcome of the election. The report indicated that Don Jr. wasn’t charged for his role in seeking Russian contacts because his testimony demonstrated that he truly wasn’t aware that what he was seeking to do might be a felony. In other words, we can infer from this that Trump’s son was deemed too stupid and ignorant to be charged.

Furthermore, despite the president’s insistence that he was “joking” when, during a campaign rally, he said, referring to the controversy over Hillary Clinton’s use of a private Internet server while she was secretary of state, “Russia, if you're listening, I hope you're able to find 30,000 emails that are missing,” the report indicates that it wasn’t more than five hours until Russian agents were at work seeking to hack their way into the computers of Hillary Clinton and, eventually, the Democratic National Committee (DNC).

 - There was indeed, according to the report, Russian intervention in the 2016 elections. It led to the Mueller team’s indictment of a dozen Russian military intelligence agents. Collusion or no, this is a topic of grave concern to the country’s security, and one that is getting way too little attention, mainly because if the president admits that Russian intervention in US domestic affairs is a major problem that requires immediate action, it will be a tacit admission that his performance in the popular vote, which he lost by nearly three million votes, may have been even worse than at first believed.

 - The Mueller Report does not say, as the president and AG Barr have sought to convince the public, that there was no obstruction and/or attempted obstruction of justice on the part of Trump. It merely says that Department of Justice guidelines dictate that no sitting president can be indicted. If not, independent legal experts indicate, there are at least eleven examples of attempted obstruction with which Trump could be charged. And former federal prosecutor and legal analyst Jeffrey Toobin told CNN that under federal law, attempted obstruction is the same as obstruction because it indicates a willingness to subvert and influence the outcome of legal proceedings.

 - Which brings me to a bottom-line conclusion of the report: namely, that, thanks to the adults in the room among Trump’s team and the GOP, the system worked to keep the president somewhat more in check than he otherwise would have been, particularly as regards obstruction of justice. What can be inferred from Mueller’s report is that collusion was avoided and obstruction contained because a number of Trump team members disobeyed Trump’s orders. In other words, they saved Trump from himself, and in the process, preserved the rule of law. The highest-profile case of this was seen in testimony by former White House Counsel Don McGahn whose lengthy presentation before investigators provided major insight into a paranoid and dysfunctional administration in which he consistently stood up to the president to keep him from breaking the law or getting others to do so.

The importance of McGahn’s testimony before the Mueller investigation team is clear from the fact that the president is now railing against the former White House counsel, saying that McGahn painted a distorted picture of the Trump administration. It is more likely, however, because McGahn was right on the money that he is now a target of the president’s rage.  As an unnamed White House source told The Washington Post, “If anything, Don (McGahn) saved this presidency from the president. If Don had actually gone through with what the president wanted, you would have had a constitutional crisis. The president’s ego is hurt, but he’s still here.”

THE BARR LETTER—NOT WHAT YOU KNOW BUT WHAT YOU CAN PROVE

Special Counsel Robert Mueller

There is a saying in law and law enforcement that, in court, it isn’t what you know, but what you can prove. This is the same rule I applied many years ago as a newspaper editor in deciding what would go into the paper and what wouldn’t—or would, perhaps, if I thought it was newsworthy, but with all of the “allegedlys” and “reportedlys” and sourced quotes necessary to piece a story together without stating it as fact unless we had hard evidence that it was. I still apply that rule to all of my non-fiction writing and opinion pieces.

That’s why I think that, no matter on which side of the deeply partisan US divide we might be, both sides need to admit that Robert Mueller and Rod Rosenstein are both serious public servants who have done their best in a highly conflictive climate to be firmly impartial and to preserve the rule of law, resisting tremendous pressure from all quarters to abandon their best instincts.

Deputy Attorney General Rod Rosenstein

That said, this is the same kind of impartiality that Attorney General William Barr should apply to his handling of the report that Special Counsel Robert Mueller handed him last weekend. So far, all we have is a brief four-page summary that Barr released after reading the Mueller Report. And the attorney general is still in the process of deciding just how much of the information contained in the report he will release to Congress and to the American people.

Already in his summary, however, Barr has caused surprise by inserting himself into the discussion, making judgments about the level of guilt or innocence of the president and his aides that, according to his own admission, Mueller never articulated in his report. Specifically, Barr says that, “...Assistant 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.” In other words, Barr would appear to be arriving at a conclusion that the report itself did not, as far as we know. 

Nor is President Trump’s assertion that the report “completely exonerates” him accurate. On the contrary, according to the attorney general, the Mueller Report says specifically that “while this report does not conclude that the President committed a crime, it also does not exonerate him.”

This is an important distinction since it leaves the door open to prosecution of questionable actions in other venues—such as the Southern District of New York. And, as the report indicates, the Special Counsel himself has, according to Barr, “referred several matters to other offices for further action” even though the report makes no recommendation for further indictments within the limits of Mueller’s investigation itself.

Disgraced National Security Advisor Michael Flynn
pled guilty to a one-count felony and told all.

It is important to make a distinction too between exoneration of the current administration (and its entourage) from all wrong-doing and simply finding insufficient evidence to lay charges—again, it’s not what you know but what you can prove. Be that as it may, Democrats were quick to quote the rule of law when the Republicans cried foul after the FBI announced that there was insufficient evidence to charge then-presidential candidate Hillary Clinton for her private email escapades. They will need to remember that now, when the GOP cites the Mueller Report as finding insufficient evidence to accuse the president and his associates of conspiracy with Russia to affect the outcome of the 2016 elections or of obstructing justice by firing former FBI Director James Comey.

And a further distinction to be made is between not having sufficient evidence to prosecute and the power of Congress to impeach a president when his misdeeds warrant it, based on political and ethical rather than legal considerations. Nor should public perception be seen as bearing any resemblance to the limitations of legal justice. According to Washington Post legal analyst Henry Olsen, “This evidence could have a quite different effect on public opinion than it would in a legal proceeding. Criminal prosecutions require proof ‘beyond a reasonable doubt,’ and Mueller clearly saw a strong case against Trump under that standard. While Barr decided he did not, reasonable observers could conclude differently. They could also conclude, perhaps, that they have reasonable doubts but think Trump did obstruct justice under the more lenient ‘clear and convincing evidence’ or ‘preponderance of the evidence’ standards. Prosecutors would not look at a criminal case through those lenses, but politicians and pundits are sure to do so.”

Olsen goes on to suggest that “the matter of the president’s intent is key, as a prosecutor would have to prove that such a crime was committed with ‘a corrupt intent.’ Barr writes that the special counsel’s finding that the president was not involved in an underlying crime bore ‘upon the President’s intent’ regarding obstruction. In plain English, that suggests there is evidence that people could conclude constitutes criminal obstruction, but that Trump’s saving grace in the law is that he also could not be proven to have colluded with the Russians. Political observers could disagree.”

George and Kellyanne Conway

That point of view appears to be succincty expressed in an op-ed that appeared earlier this week, also in the Washington Post. It’s author was relenteless Trump critic and New York attorney George Conway, who is famously married to one of the president’s closest aides, Kellyanne Conway. According to Attorney Conway, “As for whether the president obstructed justice, that question was always dicey. No one should have been surprised that it raised, as Attorney General William P. Barr’s letter put it, quoting Mueller, ‘difficult issues of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.’ On the law, Barr was probably not wrong to suggest, as he did as a private citizen, that there’s a difference under the statutes between a president destroying evidence or encouraging a witness to lie and a presidential directive saying, ‘Don’t waste your time investigating that.’ But that doesn’t mean the latter can’t be an impeachable offense.”

Conway added that Mueller was a guy who “plays by the rules, every step of the way.” He went on to say that “if (Mueller’s) report doesn’t exonerate the president, there must be something pretty damning in it about him, even if it might not suffice to prove a crime beyond a reasonable doubt.” Beyond the idea of whether or not there is evidence to accuse the president or any of his unindicted associates of anything, Conway indicated that one thing seemed clear:  “If the charge were unfitness for office, the verdict would already be in: guilty beyond a reasonable doubt.”

The fact that the investigation was unable to establish criminal conspiracy with the Russians has been taken in pro-Trump quarters as signifying that the whole Mueller probe was a monumental waste of time and tax-payer money—that, in short, it was, as the president repeated ad nauseam, a witch hunt. But nothing could be further from the truth.

To start with, the investigation indeed established that there was significant Russian espionage and intervention in the 2016 election process. Barr describes the Mueller Report as outlining “the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with those efforts.” Barr goes on to say that “the Special Counsel’s investigation determined that there were two main Russian efforts to influence the 2016 election.”

Donald Trump pictured with disgraced collaborators 

Michael Cohen (left) and Paul Manafort

One of these was spearheaded by Russia’s Internet Research Agency (IRA), apparently an intelligence front, which conducted disinformation and social media operations in the US that were “designed to sow discord”—mission accomplished! The other was a hacking operation “designed to gather and disseminate information to influence the election.” According to Barr, “the Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks.”

Whether there was collusion or not is clearly of paramount importance, but shouldn’t we be at least as concerned about the fact that the Kremlin managed to infiltrate US data systems and achieve a significant measure of success in influencing the election process, or at the very least, the campaigns as such? On that count, the Mueller probe was clearly a great success, managing to identify and indict a number of Russian operatives, including military intelligence officers. It also established that, if there was insufficient evidence to charge collusion, there were indeed “multiple offers from Russian-affiliated individuals to assist the Trump campaign.” This raises the question of why organizers of that campaign didn’t bother to report these offers to the FBI, considering that they were being made by a hostile foreign power that was clearly seeking to influence the outcome of a US presidential election process.

There was indeed a “there-there” in the investigation. It rendered the indictment of 34 people including 13 Russians and three companies, as well as gleaning a number of guilty pleas, convictions and useful testimony, some of which included top advisers to President Trump, on charges ranging from interference in the 2016 election and hacking emails to perjury and witness-tampering.  Collusion or no, this is a very big deal.

Obviously, having access to the full report rather than to the attorney general’s four-page interpretation of it would clear up a lot of what remains a mystery to the people of the United States and their congressional representatives right now. Considering the tremendous weight that this information and the investigation have brought to bear on the US political scene and on the hearts and minds of citizens as a whole for the past two years, perhaps the head of the Justice Department should—except for any redaction necessary to preserve the rights of the innocent and the rule of law—consider the possibility that whether or not the rest of the report should be made public isn’t his decision to make. Morally, he should consider it his duty to the people of the United States to provide the highest degree of transparency possible within the law and to lead by taking the stellar example of his two subordinants, exercising the same kind of impeccable ethics and impartiality that they have demonstrated.

It remains to be seen whether that is what he will do. But the president, at least in public, has said that it is solely the attorney general’s decision and that he, Trump, is willing to release the report to the public. In terms of allaying suspicions and doubts regarding this topic among Americans of all political stripes, it is of crucial importance that William Barr do exactly that.