Law & the Courts

The Mueller Report Vindicates Bill Barr

Attorney General William Barr (Yuri Gripas/Reuters)
Barr has provided Congress with the full, at times gory details drawn from Mueller’s aggressive investigation.

Democrats and their media partners owe Bill Barr an apology. He won’t get one, it goes without saying.

Just to recap, the attorney general was accused of misrepresenting Mueller’s report; of providing a false summary of the report; of plotting to use grand-jury law and other secrecy provisions as a pretext to redact most of the report; and of calling an extraordinary press conference in order to exculpate the president by projecting a fraudulent version of the report.

These accusations were slanderously false.

Barr made Mueller’s bottom-line findings available on a Sunday, March 24, less than two full days after receiving the report from Mueller late on a Friday. Now that the 448-page tome is public, it is easy to see that it could not possibly have been redacted, in keeping with federal law, without a weeks-long review process.

If Barr had issued nothing while that painstaking process went on, he’d have been vilified for a cover-up. Instead, he quickly and accurately reported Mueller’s findings . . . and was of course vilified for purportedly lying about what the report said — notwithstanding that Mueller, no wallflower, was cooperating in the redaction process and would obviously not have abided a fictional account of his work.

Barr’s brief account could not have been a false summary because he never undertook to summarize the report. He simply communicated Mueller’s bottom line — yes, Russia meddled; no, Trump was not complicit in a criminal conspiracy; and hand-wringing on obstruction, leaving it to Barr to make the final call.

Barr maintained that it would violate federal law if he provided grand-jury material to Congress, so he would have to withhold it. Democrats went ballistic . . . but within days, the D.C. Circuit Court of Appeals ruled that grand-jury materials must be kept secret unless they fall under an exception prescribed in Federal Rule of Criminal Procedure 6(e) — which does not have an exception for disclosure to Congress. Instead of bloviating, Democrats could simply have proposed an amendment to Rule 6(e) that would have permitted the disclosure, but that would have been an implicit concession that Barr was right. They need Barr to be perceived as not just wrong but corrupt. That’s the strategy.

The attorney general insisted that redactions for grand-jury and other legitimate purposes would be kept to a bare minimum, that he would be as transparent as possible while still honoring the law, protecting vital defense secrets, and respecting the privacy of people who came up only peripherally in the investigation. Yet Democrats bellowed that it was Watergate! all over again, and Barr was Rosemary Woods.

Then we got the report. The redactions, as promised, are minimal. The basis for each is explained. In context, the black-outs are apparently sensible and unobjectionable. Yet Barr went an extra mile, making a less redacted version (with only grand-jury material excised) available to bipartisan leaders of several congressional committees.

As you’d expect, to keep up the scandal pretense, House Democrats are nevertheless pressing ahead with their subpoena for the full report . . . as America yawns.

And cover-up? While it is pretty obvious that intelligence about Russia (unrelated to Trump) was blocked out, no effort was made to scrub from the report behavior by the president that is dishonest, conniving, and — in the view of Special Counsel Mueller — on the cusp of criminal obstruction.

Remember now, the president said he would leave disclosure issues to the attorney general. The regulations call for a confidential report from the special counsel to the AG. There was no requirement that the AG publicize the report. The withholding of the report could have been justified legally under Justice Department rules against public comment on the evidence against uncharged persons, and by the classified nature of the overarching counterintelligence investigation of Russia’s interference in the election. The report, however, was released.

Moreover, the most unsavory evidence of presidential misconduct came from the president’s own White House counsel — meaning it could have been withheld not just from Congress and the public but also from Mueller on executive-privilege and attorney–client-privilege grounds. Remember the Clinton emails investigation — recall how Mrs. Clinton inserted lawyers in her every activity, and then the Obama Justice Department dutifully tied the FBI’s hands on the rationale that basic investigative steps would have risked transgressing attorney–client privilege? By contrast, the Trump White House and Barr did not assert privilege claims; as a result, testimony damaging to the president was freely given to the prosecutor and congressional Democrats.

Finally, there is the press conference, which Democrats limned as an artifice to defraud. In reality, the Justice Department customarily calls press conferences and issues press releases at the drop of a hat. Here, there was actual need for it. The release of the report, despite the absence of charges and the lack of a legal disclosure requirement, was extraordinary. The redactions and the process of making them had to be explained. The report was so lengthy and suffused with legal esoterica that it was entirely appropriate to summarize it for the public — something the Justice Department often does for charging instruments that are less than a 20th of the size of Mueller’s magnum opus. Most important, Mueller did not resolve one of the main questions he was appointed to answer: Whether the president should be charged with obstruction. That meant Barr had to resolve it, which by itself was a good enough reason for a press conference.

Democrats claim Barr’s determination on obstruction was the equivalent of acting as Trump’s defense lawyer. But the only way for any prosecutor to assess the question of whether a suspect had corrupt intent is to catalogue the evidence that cuts against it — since, if corrupt intent cannot be proved beyond a reasonable doubt, there can be no criminal case. Barr did not claim that Trump had conducted himself admirably; he said that proving corrupt intent would have been difficult, if not impossible, thanks to (a) the president’s extensive cooperation with the investigation (making White House witnesses available, disclosing over a million documents, asserting no claim of privilege) and (b) the non-corrupt thinking that fueled the president’s frustration (i.e., his belief that his presidency was being destroyed by a bogus collusion allegation). That Democrats do not like this outcome does not make it wrong.

Under no legal compulsion to do so, Attorney General Barr has provided Congress with the full, at times gory details drawn from Mueller’s aggressive investigation. Though it cleared the president of the vacant collusion allegation that Democrats peddled for two years, the report could be grist for a House impeachment push on the issue of obstruction.

Some cover-up.

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