Law & the Courts

The Big Lie That Barr Lied

Attorney General William Barr testifies before a Senate Judiciary Committee hearing in Washington, D.C., May 1, 2019. (Clodagh Kilcoyne/Reuters)
The attorney general’s testimony was clearly accurate.

I  originally thought this was too stupid to write about. But stupid is like the plague inside the Beltway — one person catches it and next thing you know there’s an outbreak at MSNBC and the speaker of the House is showing symptoms while her delirious minions tote ceramic chickens around Capitol Hill.

So I give you: the Bill Barr perjury allegation.

We are all entitled to our own opinions. But are we entitled to our own facts? Daniel Patrick Moynihan’s bon mot says no, but Washington makes you wonder. Like when spleen-venting about the supposedly outrageous, unbelievable, disgraceful invocation of the word “spy” to describe episodes of government spying is instantly followed by a New York Times story about how the spying — er, I mean, court-authorized electronic surveillance — coupled with the tasking of spies — er, undercover agents — green-lighted by a foreign spy — er, intelligence service — was more widespread than previously known.

If I were a cynic, I’d think people were trying to get out in front of some embarrassing revelations on the horizon. I might even be tempted to speculate that progressives were trotting out their “Destroy Ken Starr” template for Barr deployment (which, I suppose, means that 20 years from now we’ll be reading about what a straight-arrow Barr was compared to whomever Democrats are savaging at that point).

The claim that Barr gave false testimony is frivolous. That is why, at least initially, Democrats and their media echo chamber soft-pedaled it — with such dishonorable exceptions as Mazie Horono, the Hawaii Democrat who, somehow, is a United States senator. It’s tough to make the perjury argument without any false or even inaccurate statements — though my Fox News colleague Andrew Napolitano did give it the old college try. As recounted by The Hill, he twisted himself into a pretzel, observing — try to follow this — that the attorney general “probably misled” Congress and thus “he’s got a problem” . . . although this purported dissembling didn’t really seem to be, you know, an actual “lie” so . . . maybe it’s not a problem after all. Or something.

I assume that in his black-robe days, Judge Nap would have known better. When meritless perjury cases are thrown out of court, judges are often at pains to explain that the questioner who elicited the purportedly false testimony bears the burden of clarity; the terms of the question dictate the evaluation of the answer. In this instance, Barr’s April 9 testimony before the House Appropriations Committee was true and accurate; if a misimpression set in after, it is because the relevant questioning by Representative Charlie Crist (D., Fla.) has been ignored or distorted.

Moreover, because perjury is a serious felony allegation, judges and legal analysts never rely on a general, selectively couched description of the testimony — much less on the likes of Speaker Nancy Pelosi’s because-I-said-so refrain that Barr “lied to Congress” and “that’s a crime.” The testimony must be examined, with emphasis on the words that were used (the questions as well as the responses), and anything we can glean about the witness’s demeanor (stingy? dodgy? forthcoming?).

The mindless, no-need-to-check-the-record allegation against Barr goes like this: The AG testified on April 9 that he had no idea why Special Counsel Mueller was upset over the way Barr’s March 24 letter described Mueller’s report; but, in fact, Barr knew exactly why Mueller was upset because he had received the latter’s March 27 letter complaining about Barr’s missive.

Now, here is the exchange on which the perjury allegation is based, with my italics highlighting key portions:

CRIST: Reports have emerged recently, General, that members of the special counsel’s team are frustrated at some level with the limited information included in your March 24th letter . . . that it does not adequately or accurately necessarily portray the report’s findings. Do you know what they’re referencing with that?

BARR: No, I don’t. I think — I think . . . I suspect that they probably wanted more put out, but, in my view, I was not interested in putting out summaries or trying to summarize because I think any summary, regardless of who prepares it, not only runs the risk of, you know, being under-inclusive or over-inclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out at once. So I was not interested in a summary of the report. . . . I felt that I should state the bottom line conclusions and I tried to use Special Counsel Mueller’s own language in doing that.

When we look at the actual words of this exchange, Barr’s testimony is clearly accurate. And I don’t mean accurate in the hyper-technical, Clintonesque “depends on what the definition of is is” sense. I mean straightforward, unguarded, and evincing a willingness to volunteer information beyond what the question sought.

Crist did not ask a general question about Mueller’s reaction to Barr’s letter; he asked a specific question about the reaction of Mueller’s “team” to the Barr letter’s description of “the report’s findings.” Regarding the March 24 letter’s rendering of this bottom line — namely, Russia meddled, Trump did not collude, and Mueller failed to resolve the obstruction question — Barr said he did not know what Mueller’s staff was complaining about.

Barr has known Mueller for nearly 30 years; when Mueller was the Criminal Division chief in the Bush 41 Justice Department, he reported to Barr, who was attorney general. It should come as no surprise, then, that Barr was not getting his information from Mueller’s staff; he was getting it from Mueller directly. Nor should it come as any surprise that, before releasing his March 24 letter to the public, Barr gave Mueller an opportunity to review it; nor that Mueller declined that opportunity — given that he knows Barr well, and knew Barr would not misrepresent the report (especially given that the report would soon be public).

Three days after Barr announced the report’s conclusions, Mueller sent his letter, undoubtedly written by his staff. Mueller could simply have called Barr on the phone, as he has done a million times; but the staff’s partisan Democrats wanted a letter, which makes for much better leak material. (The letter was, in fact, strategically leaked to the Washington Post Tuesday night, right before Barr’s Wednesday morning Senate testimony.) The day after receiving Mueller’s March 27 letter, Barr called Mueller and pointedly asked whether he was claiming that Barr’s March 24 letter articulating Mueller’s findings was inaccurate. Mueller responded that he was making no such claim — he was, instead, irritated by the press coverage of Barr’s letter. Mueller suggested the publication of additional information from the report, including the report’s own executive summaries, to explain more about why he decided not to resolve the obstruction issue. But he did not claim Barr had misrepresented his findings. (See Barr’s Senate testimony, starting at 39-minute mark.)

Again, Barr’s contact was with Mueller, not Mueller’s team. His exchanges with Mueller gave Barr no basis to know about any objection to his description of the report’s findings — from Mueller or anyone else. The fact that Mueller’s staff was leaking like a sieve to the Times, the Washington Post, and NBC News does not mean they were sharing with the attorney general what the Times described as “their simmering frustrations.”

That is what Barr said in answer to Crist’s question about the report’s findings. But to avoid the misimpression that he was parsing words deceptively, Barr volunteered his perception that Mueller’s staff wanted more information from the report to be publicized. That was consistent with what can be inferred from Barr’s phone call with Mueller on March 28. And it was not news: Crist’s questions were based on the aforementioned press accounts of leaks from Mueller’s staffers. They were irked at the bad press they were receiving over Mueller’s abdication on the question whether there was a prosecutable obstruction case, and they had groused that there was much more to their report than Barr’s letter conveyed. Of course, Barr never disputed this; as he repeatedly explained, he undertook to render the conclusions, not summarize the entire 448-page report.

Barr decided that his way of making disclosure — the findings followed three weeks later by the full report — was superior to the proposal of Mueller’s staff that their own summaries be released. You can disagree with Barr on that, but that’s not grounds for a perjury claim. And it raises a point Barr made in his Senate testimony: The regulations do not require any disclosure of the special counsel’s report (which is supposed to be a confidential Justice Department document, as is typical of Justice Department deliberations over whether to charge or decline to charge). The decision of what, if anything, to disclose, and how that should be done, is exclusively the attorney general’s, not the special counsel’s. Mueller’s job was to make a prosecutorial judgment — to charge or decline to charge obstruction. Mueller failed to do that. Since Mueller didn’t do his own job, isn’t it a bit presumptuous of his staff (through press leaks) to tell Barr how to do his?

Could what happened here be more obvious? Mueller received fawning press for two years on the expectation that he would slay Trump. Then, on March 24, Democrats and the media learned not only that there was no collusion case (which was no surprise) but that Mueller had been derelict, failing to render a judgment on the only question he was arguably needed to resolve: Was there enough evidence to charge obstruction? Journalists proceeded to turn on their erstwhile hero. This sent him reeling, and it brought to full boil the anger of Mueller staffers, who wanted to charge Trump with obstruction based on the creative (i.e., wayward) theory they had been pursuing — namely, that a president can be indicted for obstruction based on the exercise of his constitutional prerogatives if prosecutors (including prosecutors who are active supporters of the president’s political opposition) decide he had corrupt intent. The staffers put their pique in a letter that could be leaked, and Mueller was sufficiently irked by the bad press that he signed it. And now Democrats are using the letter as the launch-pad for The Big Lie that Barr lied, calculating that if they say it enough times, and their media collaborators uncritically broadcast these declarations, no one will notice that they never actually refer to the transcript of what they claim is the false testimony.

Democrats are unnerved. Attorney General Barr is pursuing an inquiry into the Obama administration’s decision to conduct a foreign counterintelligence investigation of the Trump campaign. The time is now, they figure, to reprise the Ken Starr treatment: the ad hominem withering of an accomplished, highly capable official — in this instance, one who is daring to press questions that would have been answered two years ago if an incumbent Republican administration had spied on — er, monitored — a Democratic presidential campaign.

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