“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…”
“The Special Counsel states that “while this report does not include that the President committed a crime, it also does not exonerate him.””
— Barr Memo
By Dan Peak
The Commoner Call (3/28/19)
Dear Fellow Readers,
Russia — if you’re listening — please find us the entire Mueller report.
While reading this on Thursday it will be Day 5 of news, does anyone even know how many pages comprise the full Mueller report? Is it 4, 10, 500, 1,000? Don’t you want to know even that?
The point of appointing a special counsel is to remove an investigation from politics, yet here we are: Mired in politics. A summary written by Trump appointee Attorney General William Barr is not the Mueller report. There is much written about the report and yet only a handful of people have actually laid eyes on the report.
To lead with the conclusion: Barr has set himself up as the single, sole and only arbiter by standing by a ‘no indictment’ rule that effectively puts Trump above the law.
THIS IS NO EXONERATION
It is important to note, and we’ll come back to his below, Mueller did not exonerate Trump, not even Barr exonerated Trump. “Evidence on both sides” is not exoneration. More clearly, when the Barr memo states “it also does not exonerate him (the President)” is not exoneration. If you read further you’ll see former US Southern District of New York Attorney Preet Bharara makes the case for how Barr spiked the process in favor of Trump.
Barr says it will take “weeks not months” before there is a VERSION of the Mueller report viewable by the public. This will be after the White House edits for executive privilege.
In 4 pages you can provide a summary — absolutely free of actual Mueller reporting — that feeds an aura of exoneration. In 500 or 1,000 pages of findings on both sides of a crime of there is sure to be much of interest.
Let’s consider some of the important questions raised by the Barr summary.
Russia Interfered In The US Election – Barr Reports On Mueller’s Conclusion.
Barr’s summary starts by confirming the Mueller report “outlines the Russian effort to influence the election and documents crimes committed by persons associated with the Russian government in connection with these efforts”, including “that Russian government actors successfully hacked into computers…” It is noteworthy that many represent the Barr report as if even this fact is in question. The Barr memo to Congress is here.
Trump is unwilling to admit to Russian interference for fear it delegitimizes his slim electoral college-only victory. Which in turn fuels his failure to take any steps to protect future elections. No matter what else we learn or don’t learn, we have a president that puts his own interests above our well-being.
102 Contacts With Russians Is More Than “No Contact With Russians”; 16 Trump Associates With Russian Contacts Is More Than “wasn’t that many”
We won’t revisit more than two years worth of news but we’ll note that postures of exoneration means stepping past the constant lies by Trump and his campaign as well as the 102 “contacts with Russia-linked operatives”. 102 contacts is a lot more than counselor to Trump Kellyanne Conway claims with her “no contact” for two years as she continues to say this. Her latest refrain is, “The idea that any of us, and me as a campaign manager, would cheat, steal, lie, cut corners, talk to Russians, was an insult from the beginning.” Her one obvious lie alone, “no contact” blows her denial and claim of vindication right out of the water.
When asked about Trump contacts with Russians Trump TV lawyer Rudy Giuliani responded with “wasn’t that many” as CNN flashes a screen with 16 Trump associates with Russian contacts starting with those convicted like former Campaign Chair Paul Manafort and former Trump national security adviser Mike Flynn through long-time business associate and Trump Russia Tower lead soon to testify before Congress Felix Sater.
But all of that is simply grist for the larger question.
Where is the actual Mueller report? And let’s be clear: Barr did NOT exonerate Trump
Barr and Trump are on a path to block us from seeing the full Mueller report.
Mueller did not exonerate Trump; not even Barr exonerated Trump – no one exonerated Trump. There are two points of the Trump-Russia report: conspiracy and obstruction of justice. Barr’s summary has many ready-to-stick-a-fork in the question of conspiracy while rushing forward to do a gymnastics mat worth of backflips and splits over the question of Trump obstruction.
Mueller did not charge conspiracy, but that is very different from saying he found no evidence of collusion.
One bit of history: Robert Mueller was appointed as Special Counsel following Trump’s firing of FBI Director James Comey. Trump told NBC reporter Lester Holt, “when I decided to just do it, I said to myself — I said, you know, this Russia thing with Trump and Russia is a made-up story.”
Barr’s reaction to this was a 2018 memo to acting attorney general Rod Rosenstein arguing that “the president should not be investigated for taking actions that were within his powers, even if he used them to block an investigation”. This would include Trump’s firing of Comey.
Barr went on record by way of a Washington Post op-ed against the Mueller investigation, “is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.” In Barr’s opinion, “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction.”
Bulwark author — and former Milwaukee conservative radio host — Charles Sykes notes of Barr’s “odd memo” that once Barr offers his dismissal of corruption he then says there can’t be obstruction without a crime:
“They leaned heavily on the fact that Mueller had not established an “underlying crime,” which bore on Trump’s “intent with respect to obstruction.”
“As William Saletan notes, there are a lot of problems with this argument, but the simplest of all that it “bypasses examination of Trump’s obstructive acts.”
““Barr simply defines whatever Trump did as nonobstructive, as long as an underlying conspiracy with Russia isn’t proved,” Saletan notes. “If Trump asked then–FBI Director James Comey to drop his investigation of Flynn, that’s fine.””
Barr’s two-fer does not stand up to legal precedent. Barr never declares exoneration but argues on legal standing. Where Mueller does not exonerate, Barr weighed in with his own dismissal citing a prosecutorial standard of “need to be proven beyond a reasonable doubt”. Barr blithely exonerates without disclosing any of the merit that led to Mueller’s inability to decide.
Said another way, if Mueller found nothing he certainly would have said so, Mueller simply did not make a determination; drawing no conclusion one way or another.
“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…”
Barr arrived at this moment in history with baggage worthy of note from “scandalous history” in the Iran-Contra cover-up. Outside our scope, we’ll reference author Thom Hartmann and refer the reader to Hartmann’s article in another post in today’s Commoner Call.
Mueller Reports: Evidence on Both Sides / So, if no Exoneration, Then What?
Former US Southern District of New York Attorney Preet Bharara with CAFÉ insider co-host Anne Milgram make for how Barr spiked the process in favor of Trump.
The hosts start by noting Mueller reports “evidence on both sides” and “it does not exonerate him”.
Their discussion proceeds as follows.
- Barr’s choice of communication is extraordinary. Mueller decided to not pass prosecutorial judgment over Trump guilt over obstruction with a view of whether investigation could lead to a grand jury, could the president be charged. Barr does not lay out the legal standard but simply jumps in to make the decision.
- They note a question of probable cause is far from beyond a reasonable doubt.
- Bharara and Milgram had no expectation Mueller would ‘punt’. They remind listeners, the whole reason Mueller was appointed was due to Trump firing Jim Comey.
- They don’t see Mueller’s decision as harshly as abdication, but as an intent to “punt to Congress and Bill Barr ran on the field grabbed the football and took it in for a touchdown for Trump out of the blue”.
- “There is evidence of obstruction of justice – president did not give an interview, submitted answers to questions of collusion but not obstruction.”
- Their conclusion for Mueller, “Probable cause to charge but not proof beyond a reasonable doubt to convict”.
What drove the outcome is a view the President is different than regular people. Mueller didn’t rule it was close, as in “tie goes to the runner”; the conclusion was offered for Congress to act.
Bharara and Milgram see a deep flaw in process. The process operated within an atmosphere of ‘you can’t indict a sitting President’ and Barr’s spiking the ball for Trump stemmed from his stated opinion “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction.”
It is now up to Congress. What will Congress do?
*****
Not ready to fold up the tent
House Intelligence Committee Chair Rep. Adam Shiff (D-CA) is not ready to fold up the tent even on the question of collusion: ‘Undoubtedly there is collusion’: Trump antagonist Adam Schiff doubles down after Mueller finds no conspiracy.
Rep. Peter Welch (D-VT) points out, “This was a fine legal distinction Mr. Mueller had to make.” A legal determination is not the same as “no evidence” as pointed out above by Bharara.
“Undoubtedly there is collusion,” Schiff said in an interview this week, after Attorney General William P. Barr submitted a four-page letter to Congress summarizing key aspects of Mueller’s report. “We will continue to investigate the counterintelligence issues. That is, is the president or people around him compromised in any way by a hostile foreign power? . . . It doesn’t appear that was any part of Mueller’s report.”
Many have said Trump-Russia collusion is a matter of years of Trump business practice, and to that end: “He (Schiff) pledged that his panel, in partnership with the House Financial Services Committee, would continue to explore allegations of money laundering involving Trump’s properties and loans his business sought through Deutsche Bank. Remember Trump touts “Zero investments in Russia”. As we pointed out in the last edition, Deutsche Bank is cooperating.
MSNBC host Rachel Maddow asks:
“Did Trump obstruct justice? And did Barr let him get away with it?
““Whatever information [Barr] just received from Robert Mueller about the president’s behavior as it pertains to potential criminal obstruction of justice, Barr could have just passed that information on to [Congress] for them to decide what to do with it,” Maddow said on her MSNBC program Monday night. “But instead, somewhat inexplicably, he decided to take it upon himself to declare definitively, ‘Yeah, you know, I looked at all that stuff, and I can tell you there is no crime there, it’s fine.’ ”
She added: “Where did this come from? I mean, on what grounds are you saying that you have concluded there is no crime here?”
As you might expect, Trump supporters across the political spectrum, attacked Schiff and Maddow as if they were the problem. Maddow poses and answers her own list of 15 questions about the Barr summary.
In true form, Senate Leader Mitch McConnell (R-KY) blocked a vote on a resolution calling for the public release of the Mueller report following a 420-0 House vote calling for public release.
For what little it matters to russpublicans: Public opinion has 84% of respondents supporting release of the Mueller report, including 75% of Republicans.
*****
‘Dangerous degradation of the rule of law’
No exoneration even as Barr runs out the filed to spike the ball for Trump. But the challenge to democracy is much deeper.
Barr has set himself up as the sole arbiter by standing by a ‘no indictment’ rule that effectively puts Trump above the law: Mueller’s Investigation Erases A Line Drawn After Watergate.
Author Peter Baker lays this at Mueller’s feet with, “…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.”
Whether Mueller, or Barr jumping in, “the development represents a dangerous degradation of the rule of law, handing a president almost complete leeway to thwart any effort by federal law enforcement authorities to scrutinize his actions almost as if he were a king.”
*****
An unavoidable truth
Mueller certainly wrote his own summary, but instead we got Barr’s not-quite-four-page summary of a two-year investigation. Barr could have passed the report to the House Judiciary Committee as would have been consistent with process and likely Mueller intent, but Barr “ran on the field and grabbed the ball and ran it in for a touchdown for Trump”.
Barr will now edit and forward a report to the White House for further edits through a lens of executive privilege … and self-interest.
We’ll end full circle and give the last word to author and conservative columnist never-Trumper Max Boot, who summarizes the whole story:
“The scandal here is not that Trump has been investigated. It is that he won the presidency with the aid of Russia while concealing his campaign’s ties to Russia, impeding investigation of the Russian attack and kowtowing to Russia’s leader.”
(Commoner Call cartoons by Mark L. Taylor, 2018/2019. Open source and free for non-derivative use with link toe www.thecommonercall.org )