In a lengthy interview with CBS News, Attorney General Bill Barr (a) defended his decision to order an investigation into the origins of the Trump-Russia probe as appropriate and necessary, (b) stated that Special Counsel Robert Mueller could have chosen to reach a determination on obstruction of justice, and (c) rejected the notion that he and Mueller hold contradictory views on the OLC memo issue that we analyzed earlier in the week. He also telegraphed that in a "hyper-partisan" era of facts-second rancor, he is unfazed by his critics' rage. What a line:
Hardcore pic.twitter.com/oaJUIQzLky
— Charles Fain Lehman (@CharlesFLehman) May 31, 2019
On the "investigation of the investigation," Barr reiterated his belief that the overall explanations he's received about how the original inquiry began have been insufficient and unconvincing, suggesting that perhaps something is amiss about the timeline. "From my perspective the idea of resisting a democratically-elected president and basically throwing everything at him and you know, really changing the norms on the grounds that we have to stop this president, that is where the shredding of our norms and our institutions is occurring," he said. CBS' Jan Crawford asked whether he thought that may have occurred with the Obama era DOJ's investigation into the Trump campaign. Barr responded, "I am concerned about that." The Attorney General also hit back at critics of his use of the word "spying:"
CRAWFORD: On using the word, I mean, do you understand, and I know that some of the, some former intelligence chiefs have said that the president has made that word somewhat pejorative, that there is spying, this is a witch hunt, this is a hoax, and so your use of that word makes it seem that you are being a loyalist.
BARR: You know, it's part of the craziness of the modern day that if a president uses a word, then all of a sudden it becomes off bounds. It's a perfectly good English word, I will continue to use it.
CRAWFORD: You're saying that spying occurred. There's not anything necessarily wrong with that.
BARR: Right.
CRAWFORD: As long as there's a reason for it.
BARR: Whether it's adequately predicated...
Reaching a determination on adequate predication is the purpose of the ongoing Inspector General and Durham probes; the results of the former should be dropping soon. Back to Mueller. In his public statement this week, he said that based on OLC guidance, he felt that charging the president was never an option, so he never even considered it. But Barr says Mueller could have rendered a judgment over whether crimes were committed, and consequently made a recommendation. On obstruction of justice, Mueller famously did neither:
CRAWFORD: Do you agree with that interpretation that that legal opinion prevented him from making a conclusion?
BARR: I am not sure he said it prevented him. I think what he said was he took that into account plus a number of other prudential judgments about fairness and other things and decided that the best course was not for him to reach a decision. I personally felt he could've reached a decision but--
CRAWFORD: Was there anything that would've stopped him in the regulations or in those...that opinion itself, he could've -- in your view he could've reached a conclusion?
BARR: Right, he could've reached a conclusion. The opinion says you cannot indict a president while he is in office but he could've reached a decision as to whether it was criminal activity but he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons but when he didn't make a decision, the Deputy Attorney General Rod Rosenstein and I felt it was necessary for us as the heads of the Department to reach that decision. That is what the Department of Justice does...
This brings us back to the gap between what Mueller said on Wednesday and Barr's previous testimony. Mueller seemed to suggest or hint that he very well may have recommended or brought charges, if not for the OLC opinion -- by which he viewed himself as comprehensively constrained. Barr had said under oath that Mueller had previously told him and others that this was not his position. How does Barr square that circle? By saying there is no discrepancy, citing a joint statement Barr and Mueller's offices released on the subject:
"The Attorney General has previously stated that the Special Counsel repeatedly affirmed that he was not saying that, but for the OLC opinion, he would have found the President obstructed justice. The Special Counsel’s report and his statement today made clear that the office concluded it would not reach a determination — one way or the other — about whether the President committed a crime. There is no conflict between these statements."
This is how Barr explained it on CBS:
BARR: The so-called discrepancy was that I had, I had testified earlier that Bob had assured me that he had not reached a decision that there was a crime committed but was not willing to pursue it simply because of the OLC opinion and that remains the fact. That's what his position is. That's consistent with what he said yesterday. And it certainly is consistent with the joint release we put out. The confusion arose because what Bob Mueller's position was was that the OLC opinion coupled with other things as a prudential matter made him feel that he shouldn't even get into the analysis of whether something was a crime or not and that's a different question than --
CRAWFORD: Right, because you...just because there's evidence of obstruction or crime was committed doesn't mean the person is going to be charged or indicted or found to have committed that crime.
BARR: Right and he didn't' even get into that analysis. In other words, what I was discussing earlier was, was Bob, did Bob make a decision there was a crime and the only reason he wasn't saying that was because of the OLC opinion. The fact is Bob did not make a decision that there was a crime. He didn't get into the analysis at all. Part of the reason for that was his judgment about the OLC opinion coupled with other things he just didn't think it was proper exercise of his authority. So it's a totally different issue and that's why, that's why both us feel that this idea that there's been a discrepancy over the OLC opinion is simply wrong.
This strikes me as hair-splitting, but it's apparently hair-splitting that Barr and Mueller agree upon. Mueller did tell Barr that it was not his position that he'd have found criminality in the absence of OLC guidance that a sitting president can't be indicted. That's because, it appears, Mueller decided early on not to even tackle the question of whether the president had engaged in criminal activity, due to...the OLC memo. Remember, Barr says that Mueller could have considered that issue and delivered a judgment on it, but Mueller did neither. That will continue to strike many people, myself included, as bizarre. Of course there were myriad reasons for the Russia investigation to have been carried out, regardless of any resolution (or lack thereof) on the obstruction of justice piece, but why would a prosecutor preemptively, then ultimately, decide that he wouldn't make any effort to address the question of presidential criminality -- especially when his boss says it was within his purview to do so? Confounding. As a result of Mueller's choice, the Attorney General and his top deputy then fielded Mueller's punt and determined that criminal charges were not warranted. Barr explains:
BARR: Bob said that he was not going to engage in the analysis. He was, he was not going to make a determination one way or the other. And he also said that he could not say that the president was clearly did not violate the law, which of course is not the standard we use at the department. We have to determine whether there is clear violation of the law and so we applied the standards we would normally apply. We analyzed the law and the facts and a group of us spent a lot of time doing that and determined that both as a matter of law, many of the instances would not amount to obstruction.
CRAWFORD: As a matter of law?
BARR: As a matter of law. In other words, we didn't agree with the legal analysis- a lot of the legal analysis in the report. It did not reflect the views of the department. It was the views of a particular lawyer or lawyers and so we applied what we thought was the right law but then we didn't rely on that. We also looked at all the facts, tried to determine whether the government could establish all the elements and as to each of those episodes we felt that the evidence was deficient.
A CNN reporter offered a strange interpretation of these facts on Twitter earlier, prompting me to initial the following exchange:
Setting aside the assertion that Barr ‘misinterpreted’ Mueller, Barr, Rosenstein & team didn’t “overrule” Mueller on obstruction charges because Mueller didn’t make a recommendation to be overruled. https://t.co/XKNtrLhJfi
— Guy Benson (@guypbenson) May 31, 2019
1) Barr did not intend to fully capture full context/substance of the report in his initial summary of legal findings, as explained in his follow-up letter. He then released the report.
— Guy Benson (@guypbenson) May 31, 2019
2) It’s impossible to “overrule” a recommended course of action that was never recommended. https://t.co/FRqy0rSJzq
Mueller was not "overruled" on obstruction because he took no course of action on that issue, explicitly declining to do so. Barr and Mueller seem to agree that if Congress wants to act on its own (ie, move toward impeachment), that's their prerogative and business. As for the supposed "misinterpretation," we've made the case on several occasions that Barr's original limited-scope memo was accurate. Even if one disagrees with that view, the dispute was made moot when Barr released the full report, a move Mueller applauded on Wednesday. One new nugget of information gleaned from the CBS interview is that Barr felt compelled to produce his 'bottom line' conclusions document because he believed that the public would want answers much sooner than he could release the entire lightly-redacted report. Why? Because Mueller's team hadn't flagged the required redactions ahead of the report's final delivery, as Barr says he'd been requesting for some time. This meant that the redaction process would stretch on for weeks, rather than a few days. Barr said this came as a "surprise" to him, and spurred the crafting of his four-page memo:
CRAWFORD: could you just tell us again, you expected to get the report with the grand jury material identified and then what was your plan?
BARR: My plan was to figure out how long it would take us to redact what had to be redacted.
CRAWFORD: And what did you anticipate that would be?
BARR: And if we could readily, if we could readily identify the 6E material, I thought we could do it in a you know less than a week. And if I had been looking at a matter of days like that, then I probably would have just told people what the timeline is do people knew when it would be coming out when they would see it, but once I realized it was going to take 3 or 4 weeks, I felt I had to say something in the interim.
CRAWFORD: But if you had had that material pointed out this would have all been different, you wouldn't have written the four-page summary?
BARR: Probably not, no.
Having digested this full and fascinating interview, my estimation of the Attorney General is enhanced. Read and watch it for yourself here.