
Back on March 25, when all we had was Attorney General William Barr's summary of the contents of the Mueller Report, I suggested that Rudy Giuliani's announcement that the summary was "better than I expected" should probably be regarded as Rudy "tacitly acknowledging that Barr's summary . . . is as friendly to the president as is possible without leaving him (Barr) open to the charge of lying--in the event we eventually get to see the Report ourselves." At the time, I thought this was not only likely but, I confess, stylishly cynical. Now that I've read the redacted Report, I think the cynicism I was proud of was wholly inadequate. Barr's summary was such a thoroughgoing whitewash that, contrary to the limit I placed on his disingenuousness, he has left himself open to the charge of lying. If the summary had been his last word, I would have thought that at the time he wrote it he must have expected he'd be able to keep the Report secret, but then of course he applied a second coat of whitewash at the press conference held a couple of hours before he knew the redacted Report was going to be released. So it's evident he wants the world to know that he's in Trump's pocket.
Barr's summary does exhibit some level of lawyerly sophistication, for the claim that it is a lie, and intended to deceive, depends upon the concept of "total effect." You might say that the finished tapestry is indefensibly soiled even though the individual bad weavings might allow for some eyebrow-arching defenses to be advanced. In what follows I'm just going to set down a few particulars of his dishonesty, proceeding from the most granular to the more generalized.
(a) Before the Report was released, many people noted that, while Barr's summary quoted some of the Report's words, it did not quote a single complete sentence. Among people who can now boast of having been proven appropriately cynical, there arose the suspicion that there was a hidden art to Barr's selection of fragments. For example, one of his more load-bearing sentences--
As the report states: "[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities"--
inspired CNN Legal Analyst Elie Honig to surmise that the first word of the sentence from which the quoted words are lifted might be "Although." And now that we have the Report, we can read the whole sentence:
Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.
Cynicism justified. Fake News makes correct call.
(b) The opening sentence of Barr's summary of the obstruction of justice portion of the Report is:
The report's second part addresses a number of actions by the President--most of which have been the subject of public reporting--that the Special Counsel investigated as potentially raising obstruction-of-justice concerns.
This is quite a slippery onslaught. Obstruction of justice is a noun and a crime, not an adjectival modifier of mere "concerns" that are further diminished by "potentially." The parenthetic aside is meant to communicate the idea that there is little or nothing new in the Report, but that isn't true: some presidential actions that hadn't been in media reports are the very most damaging to Trump, and Barr fails to mention, with respect to the acts that have been the subject of public reporting, that Trump has vehemently denied he did the things that first journalists and now Mueller report that he did in fact do. The "fake news," according to Mueller, was the truth.
The remarkable saga of Trump's effort to arrange the firing of Mueller exhibits several of the elements sketched above. We knew, from reporting in both The New York Times and Washington Post, that in the summer of 2017 Trump had directed White House Counsel Don McGahn to call Rod Rosenstein, Mueller's boss at the Department of Justice, and tell him that Mueller was "conflicted" and had to go. McGahn determined that he would quit rather than carry out this order. He gave Trump the impression he would do as told, and prepared to resign, but was talked out of it by Reince Priebus and Steve Bannon. Trump did not subsequently ask whether McGahn had conveyed the message to Rosenstein, and the matter blew over until, in early 2018, both the Times and the Post reported that Trump had ordered McGahn to set in motion the firing of Mueller. This reporting infuriated Trump, and what we hadn't before known is the steps he took to "rebut" the work of the two newspapers. From Mueller's Report (Volume 2, pages 115-116):
The next day, on February 5, 2018, the President complained about the Times article to Porter [who subsequently left the White House after it was revealed that he serially beat his wives]. The President told Porter that the article was "bullshit" and he had not sought to terminate the Special Counsel. . . . The President then directed Porter to tell McGahn to create a record to make clear that the President never directed McGahn to fire the Special Counsel. Porter thought the matter should be handled by the White House communications office, but the President said he wanted McGahn to write a letter to the file "for our records" and wanted something beyond a press statement to demonstrate that the reporting was inaccurate. . . .
Later that day, Porter spoke to McGahn to deliver the President's message. Porter told McGahn that he had to write a letter to dispute that he was ever ordered to terminate the Special Counsel. McGahn shrugged off the request, explaining that the media reports were true.
Not sure whether to say that the flat narration obscures or highlights that the President of the United States ordered the White House Counsel to manufacture a piece of false, exculpatory evidence "for our files." Clearly obstruction of justice, and as outrageous as anything described in the Articles of Impeachment adopted against Nixon. I love the detail concerning how McGahn "shrugged it off." All in a day's work at the Trump White House!
Here again, from Barr's summary of these and other events: "The report's second part addresses a number of actions by the President--most of which have been the subject of public reporting--that the Special Counsel investigated as potentially raising obstruction-of-justice concerns."
(c) Barr's most general misrepresentation relates to the impression he creates that, with respect to obstruction of justice, Mueller was unable to reach a conclusion, so close was the call, and that therefore it was left to him, Barr, with the assistance of Deputy Attorney General Rosenstein, to resolve the matter, which they did in favor of Trump. The last sentence of this paragraph--the whole summary is available here--states:
Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.
This refers to the Justice Department's policy against indicting a sitting president. Barr is saying he first determined that Trump's actions did not rise to the level of obstruction of justice, and that consequently he didn't have to come to any conclusion about whether one could proceed with a criminal action against the current president. But Mueller's method, which Barr is supposedly summarizing, was exactly the other way around. From the Report:
[A] traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution, but we determined not to make a traditional prosecutorial judgment. The Office of Legal Counsel (OLC) has issued an opinion finding that "the indictment or criminal prosecution of a sitting president would impermissibly undermine the capacity of the executive branch to perform its constitutionally defined functions" in violation of "the constitutional separation of powers." Given the role of the Special Counsel as an attorney in the Department of Justice and the framework of the Special Counsel regulations . . . this Office accepted OLC's legal conclusion. . . .
[Snip]
[W]e considered whether to evaluate the conduct we investigated under the Justice Manual standards governing prosecution and declination decisions, but we determined not to apply an approach that could potentially result in a judgment that the President committed crimes. . . . Fairness concerns counselled against potentially reaching that judgment when no charges can be brought.
Mueller couldn't be more clear. He was never going to say that Trump committed crimes. He couldn't indict him, because of the OLC policy against indicting a sitting president, and he therefore wasn't going to conclude that the president had committed crimes--that wouldn't be fair, considering that the president, unlike a regular person who can be indicted and charged with a criminal offense, would not be able to clear his name in a criminal trial. The accusation would just be hanging. What Mueller says he will do is investigate the behavior and, if possible, exonerate the president--which, in the end, regarding obstruction of justice, he very pointedly chose not to do.
Barr's summary, by remaining silent on the subject of Mueller's presuppositions and method, is able to represent the decision not to conclude that Trump committed crimes as the result of a hard case, a hung jury, a close call, a tie that Barr is just the man to break. It would be pretty bad, I think, if the President of the United States had come that close to obstructing justice, but Mueller's Report makes plain that, on the evidence, things are a lot worse than that.