The Barr Has Been Lowered

This past Sunday afternoon Attorney General William Barr released his summary “interpretation” of the Mueller report. Containing just a handful of sentence fragments from the actual Mueller report, the summary was even more lacking in detail and more focused on providing an extremely narrow and slanted view of Mueller’s conclusions than I had predicted in my column from this past Sunday morning (See: Mueller Plays His Dominoes). Until we see the actual report submitted by Robert Mueller, and we learn how and why the Special Counsel’s probe ended, we know very little about what Mueller actually discovered, or might have failed to discover if it turns out his investigation was terminated prematurely. Barr’s letter summarizing the Mueller report appears every bit as reliable as one of Trump’s self-written notes from his doctor.

Let’s take a look at the key deficiencies in Barr’s comments on the Mueller Report related to the two primary topics of election interference and obstruction of justice. The references at the end of the column provide considerably greater depth.

Election Interference

“[F]ocusing on the absence of criminal indictments for conspiracy is unproductive. “If all we do is apply criminal standards to investigative findings, we are missing the point,” Figliuzzi told me. He noted that the vast majority of counterintelligence cases never result in criminal prosecution. Instead, he said, “they’re about determining the degree to which a foreign power has targeted, compromised, or recruited” the subject. “This thing started as a counterintelligence investigation,” Figliuzzi said, “and it needs to end as a counterintelligence investigation.””

–Natasha Bertrand in The Atlantic: The Critical Part of Mueller’s Report That Barr Didn’t Mention

Barr quoted Mueller: “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

This is important to know, although it is rather disturbing that Barr is only giving us the ending part of Mueller’s sentence, the initial part of which may possibly have made assertions damaging to Trump and those close to him.

But even more importantly, it doesn’t really answer or address the key collusion and conspiracy allegations that had been made against Trump:

• Have Trump, or those close to him, traded, or attempted to trade, U.S. sanctions policy for loans or deals with Trump and his family?

• Are there financial, sexual, and criminal issues that would cause a reasonable person to believe that Putin and Russia have undue leverage over Trump, and if so, what are the details?

• To what extent are the allegations in the Steele Dossier true?

• Why has Trump continually lied to America regarding Russian interference with the election and about the involvement of himself and those close to him with Russia?

As noted by Seth Abramson on Twitter : “Here’s the key point on this: As Mueller began his work, *no one in America was accusing Trump of engaging in a covert illegal agreement with a Russian government entity*. Not the IRA, not the GRU, not the FSB. *Nor had Trump done that*. Which is why he immediately denied it.” and

“What Barr has done is *adopt wholesale* Trump’s definition of “collusion”: the narrowest possible definition, which involves *only* a single type of crime (Conspiracy) with *only* a single entity (the Russian government) and *only* on a single topic (“election interference”). The problem is that that definition *in no way fit* the collusion Trump was *actually* being accused of—which involved (a) Bribery, (b) by Russian agents, affiliates, or cutouts, (c) on the subject of trading U.S. sanctions policy for loans or deals with Trump and his family.

All these key questions remain unanswered. Did Mueller fail to investigate them? It is possible but it seems quite unlikely. Was Mueller’s investigation of such issues ended prematurely by Barr and/or Whitaker? It seems even more likely after reading Barr’s letter. Is Barr limited in disclosing the details of what was found because of ongoing criminal and counter-intelligence investigations? Probably so, in part. Is Barr deliberately withholding damaging information from the public while disclosing exculpatory information about Trump in one very limited area that was not the focus of the allegations made against Trump? Almost certainly.

Obstruction of Justice

“We have to see the report. We cannot make a judgment on the basis of an interpretation by a man [Attorney General William Barr] who was hired for his job because he believes the President is above the law and he wrote a 19-page memo to demonstrate that.”

“We have to handle this professionally, officially, patriotically, strategically.”

— Nancy Pelosi quoted in CNN Politics: Pelosi says Barr believes Trump is ‘above the law’

Barr states: “The Special Counsel therefore did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as “difficult issues” of law and fact concerning whether the President’s actions and intent could be viewed as obstruction. The Special Counsel’s report states that “while this report does not conclude that the President committed a crime, it also does not exonerate him.””

Yet Barr fails to present any of the evidence of obstruction so the public can make an assessment. Instead, Barr goes on to state: “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.”

And that “In making this determination, we noted 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,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.”

It seems likely that Mueller intentionally didn’t make a determination based on the evidence, because in the President’s case he views it as Congress’s job to do so, based on the evidence he uncovered. Barr attempts to usurp Mueller’s report by adding a result of his own, and one that is, as discussed in more detail below, not supported by any reasonable interpretation of the law or the manner in which such decisions should ethically be made.

Barr is likely doing this for two reasons. The first reason is to give Trump a “win” he does not deserve, and a vindication that will be difficult to override in the eyes of Trump’s cult of supporters. Barr has set a bar now that requires that he be proved wrong, while also withholding all the evidence necessary to do so.

The second reason is that Department of Justice guidelines generally prohibit the disclosure of information on cases in which the DOJ has made a decision not to indict. So Barr is making this determination to prevent dissemination, to both the public and to Congress, of the evidence uncovered regarding Trump’s obstructive behavior.

Barr’s conclusion is deeply flawed and inappropriate for many reasons. As noted by Seth Abramson: “Given that Rod Rosenstein is a *witness* in the Obstruction case, and therefore can’t speak to it—and given that Barr already issued a *judgment* on Obstruction pre-evidence (via his memos) and therefore has an unambiguous need to recuse himself—what he says next is amazing. What Barr reveals is 2 ineligible arbiters of Obstruction—he and Rosenstein—made the final call on Obstruction though Mueller seems to have believed the issue was properly for Congress (either constitutionally or because the evidence was public and they’re the people’s reps).”

Yet even beyond these considerations, there are also ethical issues here that are deeply troubling. Having Barr, who was chosen for the Attorney General position by Trump while the Mueller investigation was already in progress, make a determination on the Obstruction claim, as well as him being the person who decides and judges what parts of the Mueller report becomes public, puts an end to the most basic ethical principle that a president should not choose their own investigator.

Abramson continues “What Barr says next—that you can’t commit Obstruction if there’s no underlying crime—is, well, *crazy*. You can’t find a serious attorney anywhere in America who says that’s the law, as it simply isn’t and never has been and no one knows where Barr came up with this doctrine.” (We know where he came up with it from–Rudy Giuliani, who is arguable no longer considered a “serious attorney”.)

Additionally, even if one were to accept the absurd notion that you can’t commit Obstruction if there’s no underlying crime, the assertion that there was no underlying crime completely fails to hold water. As noted by Aaron Blake in The Washington Post: Legal experts question William Barr’s rationale for exonerating Trump:

“Former national security adviser Michael T. Flynn pleaded guilty to lying to the FBI about his contacts with the Russian ambassador to the United States, and Trump allegedly requested that then-FBI Director James B. Comey be lenient on Flynn. That’s an actual crime Trump could be trying to cover up.

The same goes for longtime Trump adviser Roger Stone, who has been indicted in connection with attempts to contact WikiLeaks during the 2016 campaign. Stone’s indictment notably said that “a senior Trump Campaign official was directed to contact STONE” about the matter. Some have suggested that it might be Trump who did that directing. Even if it wasn’t, Mueller clearly sees an actual crime here, which Trump’s actions vis-a-vis his investigation could affect.

Trump campaign chairman Paul Manafort was sentenced to 7 1/2 years in prison. Former Trump lawyer and fixer Michael Cohen got three. Cohen has implicated Trump in Cohen’s felony campaign finance violations, and Trump has engaged in very public conduct that some have alleged was meant to intimidate Cohen as he testified before Congress.

Barr’s argument is that the lack of an underlying crime suggests there’s less reason to believe Trump had a “corrupt intent” behind his actions regarding the investigation. But if you set aside collusion, there would seem to be plenty for Trump to want to cover up. Even if these proven and alleged crimes didn’t involve criminal activity by Trump personally, he would seem to have a clear interest in the outcomes of these investigations, both because of his sensitivity about the idea that Russia assisted him and because of the narrative it created of a president surrounded by corruption.”

Where We Are Now

Via Ray Lawrence on Facebook
“After Watergate, it was unthinkable that a president would fire an F.B.I. director who was investigating him or his associates. Or force out an attorney general for failing to protect him from an investigation. Or dangle pardons before potential witnesses against him.

But the end of the inquiry by the special counsel, Robert S. Mueller III, made clear that President Trump had successfully thrown out the unwritten rules that had bound other chief executives in the 45 years since President Richard M. Nixon resigned under fire, effectively expanding presidential power in a dramatic way.”

–Peter Baker in New York Times: Mueller’s Investigation Erases a Line Drawn After Watergate

Nothing that has happened to date indicates that Robert Mueller failed to do his job to the best of his ability within the constraints that he had to work with, and without regard to partisan issues. Mueller has earned the public’s trust over his career and the last two years in particular. As Franklin Foer notes in The Atlantic, “The Mueller investigation has been an unmitigated success in exposing political corruption.” But Barr’s letter creates the appearance that Barr himself is running interference to protect Trump, and that the Department of Justice has now become a true partisan tool of the Trump administration. Many of the issues raised by Mueller will be handed off to other jurisdictions, but it now appears possible that some topics won’t be fully investigated or prosecuted until we have an Attorney General in place who is not a Trump loyalist.

The reporting on Barr’s letter by the mainstream media has been horrifically deceptive and unfactual. Barr’s letter, and the public and media reaction subsequent to its publication, provides a dramatic example of gaslighting and how easy it is for people to abandon what they have seen with their own eyes when someone in authority tells them otherwise. As Peter Daou noted on Twitter:

“The #Mueller saga is the ultimate gaslighting of the American people.

WE SAW Trump ask Russia to hack Clinton’s emails. They did.

WE SAW him repeatedly bow down to Putin.

WE SAW him obstruct justice and boast about it to Russian operatives…

WE SAW how many clandestine meetings and contacts were uncovered between Trump’s campaign and the Russians.

WE SAW the GOP do nothing about Russia’s cyberattack on our elections.

And yet, big media says he’s “exonerated” and savoring “victory”…

For two years, I warned that the #Mueller probe was having the effect of obscuring abuses of power occurring in plain sight, and that waiting for some massive bombshell was dangerous when impeachable transgressions were happening almost daily.

Democratic leaders fell right into the trap, deferring impeachment hearings and placing all their faith in a report that was going to be filtered through Trump’s hand-picked AG (i.e. the #BarrLetter).

Now they’ll be portrayed as sore losers…”

Some of the comments I’ve seen on social media are distressing indeed, with people giving up hope for America and our future, and who feel it is impossible to resist America’s push towards fascism. Gaslighting works: people get tired, they get confused, they wear down, and they give up. And the members of the Cult get further embolden and entrenched. (See: John Pavlovitz: No, It’s Not You. This is Crazy.)

Impeachment will not likely occur this year. If it does occur, expect it to happen late enough in 2020 for there to not be sufficient time for the Senate to vote on removal from office before the November presidential elections.

This week the Trump Cult is playing this for all it is worth. March 24, 2019 was the best day that the Trump presidency ever had since the day he was elected. And it will likely be the best day that it ever has.

Soon the Democrats will have their turn, as the contents of Mueller’s findings are disclosed over time; as the dozens of ongoing investigations into Trump’s malfeasance make their way through the various jurisdictions that are now investigating him; and as the House of Representatives begins its investigatory role in earnest. Scandals of Trump and his administration’s malfeasance will be disclosed at an ever increasing pace as we approach November, 2020.

The Democrats will feast upon it, as it allows them to raise money for Democratic candidates across their ticket, potentially increase their number of seats in the House, perhaps take majority control of the Senate, and to elect a Democrat to the presidency. But America will pay a terrible price, as Trump and his corruption continue to destroy America’s democracy; its democratic institutions; its environmental, economic and financial stability; and jeopardize global political stability in dramatic ways.

William Rivers Pitt notes in Truthout: “The ink wasn’t dry on Attorney General William Barr’s laughably porous “summary” of the Mueller report before Donald Trump and his allies declared war on all who have displeased them. This included a demand from Sen. Lindsey Graham (R-South Carolina) that Bill Clinton be investigated for his 2016 airport tarmac meeting with then-Attorney General Loretta Lynch, demands for an investigation into the investigators, demands for an investigation into how the whole thing is Barack Obama’s fault, demands for a whole separate investigation into how the whole thing is actually Hillary Clinton’s fault, an enemies list sent to media outlets naming people who should be banned from the airways and, of course, a wholesale assault on the news media itself.”

Trump now believes he has been “vindicated.” While nothing could be further from the truth, Barr’s spin on the Mueller report allows him to promulgate that narrative. It will embolden him to continue to lie and promote an alternative reality, to betray and loot America in matters large and small, and his audacity in doing so will only increase as he believes, through William Barr, that he now has the judicial system rigged so that he will not face repercussions.

And if he finds himself in danger of losing a fair election in 2020, the odds increase greatly that he will: 1) support or turn a blind eye to efforts aimed at corrupting our elections; 2) fuel a global war or crisis to divert attention from his political troubles; 3) declare a “national emergency” to curtail rights; and/or 4) claim an unfair election and refuse to leave office at the conclusion of his term.

These are dark and troubling times for America. Americans are entitled to start shedding some light on the situation by seeing an appropriately redacted version of the actual Mueller report (not a summary of the report written by William Barr), and our congressional representatives with appropriate security clearances are entitled to see an unredacted version. If this doesn’t happen, soon, the American people will need to decide if they are going to take to the streets to protest, en masse, or be led like sheep to the slaughter. Our thoughts are with our friends in Britain as well, who also face many difficult days ahead.

Additional Reading

Natasha Bertrand in The Atlantic: The Critical Part of Mueller’s Report That Barr Didn’t Mention

David Frum in The Atlantic: The Question the Mueller Report Has Not Answered

Mikhaila Fogel, Quinta Jurecic, Susan Hennessey, Matthew Kahn, and Benjamin Wittes in LawfareWhat to Make of Bill Barr’s Letter

Aaron Blake in The Washington Post: Legal experts question William Barr’s rationale for exonerating Trump

Preet Bharara on Pod Save America: No exoneration

Russell Berman, The Atlantic: The Trump Scandals That Have Slipped by Congress

Franklin Foer, The Atlantic: The Mueller Probe Was an Unmitigated Success

Masha Gessen, The New Yorker: After the Mueller Report, the Dream of a Sudden, Magic Resolution to the Trump Tragedy Is Dead

Susan B. Glasser, The New Yorker: “Trump Wins!”: The President, the Mueller Report, and Our New Political Normal

Quinta Jurecic, The Atlantic: No One Who Matters Has Read the Mueller Report Yet

William Rivers Pitt, Truthout: Don’t Believe Trump or Barr. The Investigations Are Just Beginning

Conor Friedersdorf, The Atlantic: The Public Needs to See Robert Mueller’s Report

Peter Baker, New York Times: Mueller’s Investigation Erases a Line Drawn After Watergate

Darren Samuelsohn in Politico: Mueller grand jury ‘continuing robustly,’ prosecutor says

Andy Borowitz (satire), The New Yorker: William Barr Reads “Moby-Dick,” Finds No Evidence of Whales

Twitter Thread, Seth Abramson: The already-infamous “Barr Letter” is a deeply dishonest and misleading document

Twitter Thread, Peter Daou: The ultimate gaslight

George Conway, The Washington Post: Trump is guilty — of being unfit for office

Manu Raju and Jeremy Herb, CNN: Pelosi says Barr believes Trump is ‘above the law’

Scott Neuman, NPR: Doctor: Trump Dictated Letter Attesting To His ‘Extraordinary’ Health

David Frum, The Atlantic, May 14, 2017: A Special Prosecutor Is Not the Answer

John Pavlovitz: No, It’s Not You. This is Crazy.

Added after initial publication:

Natasha Bertrand, The Atlantic: Even Congress Might Not Get the Full Mueller Report

Joshua Geltzer and Ryan Goodman, Just Security: The Missing Piece of the Mueller Investigation

David Corn, Mother Jones: Here’s the Real Trump-Russia Hoax

Kim Wehle, The Bulwark: Debunking Three Myths About Barr’s Summary of the Mueller Report

Renato Mariotti, Politico: William Barr Can’t Hide the Mueller Report

Seth Abramson, Newsweek: The Mueller Report Will Be Gutted Before It Reaches You

Nicholas Fandos, Michael S. Schmidt and Mark Mazzetti, New York Times: Some on Mueller’s Team See Their Findings as More Damaging for Trump Than Barr Revealed

Matthew A. Miller, Politico: The Barr-Shaped Cloud Over the Justice Department

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Cliff Kurtzman

Described as "pragmatically reckless with a high tolerance for ambiguity," Dr. Cliff Kurtzman is the founder of The Domino Principle. He is also an award winning entrepreneur, speaker, trend forecaster, and M.I.T.-trained rocket-scientist. Over the past 25 years, Cliff has launched several highly successful ventures by seeing technology trends in the world before they became widely realized, figuring out how they would impact our lives and then creating businesses that leveraged those trends ahead of many others. His bio is at http://www.kurtzman.biz.
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