William Barr

WASHINGTON—D.C. President Trump’s newly appointed Attorney General William Barr released a cryptic four page summary of Special Counsel Robert S. Mueller III’s final report. Barr admits Mueller’s report does not exonerate Trump and that Mueller referred issues out (probably for further investigation by federal prosecutors in multiple jurisdictions). Mueller probably recommened Trump be tried in the U.S. Senate, rather than court.

The difficulty in analyzing Barr’s summary is the degree in which he conflates issues (e.g. conspiracy with obstruction of justice). Barr is careless when he describes the potential co-conspirators Mueller investigated. For example, Barr describes the “Trump Campaign” as a potential co-conspirator. Barr explains Mueller didn’t find the “Trump Campaign” had conspired with Russia. Barr discusses “associates” of the Trump campaign. But also discusses people “associated with” the Trump campaign. Are those descriptions synonymous? What’s the difference? Barr’s lack of precision with simple nouns renders the complex issues all the more vague and ambiguous.

What are the key takeaways from Barr’s summary?

Barr’s summary explains some critical facts:

  • Mueller did not make a determination on whether to prosecute Trump for obstruction of justice, instead he made an untraditional prosecutorial judgment (hint hint that probably means Mueller is recommending it be addressed by Congress.)
  • Mueller has definitely referred matters out to other prosecutors.
  • The Russian government hacked Clinton’s and the DNC’s emails then distributed the stolen emails to WikiLeaks.
  • Many people were already indicted and convicted for Russian interference.
  • Russian “affiliated” individuals made multiple offers to assist the Trump campaign.
  • Mueller does not have any remaining indictments (or sealed ones).
  • Barr and Rosenstein don’t seem to believe they can establish sufficient evidence of obstruction required to convince a jury.

What is missing from Barr’s summary?

Barr’s summary fails to address the most critical issues concerning Trump’s conduct:

  • Did Mueller make any determination about whether Trump should be prosecuted as a co-conspirator?
  • Does Mueller, Barr, or Rosenstein believe there is substantial admissible evidence that Trump is a co-conspirator?
  • Does Mueller believe there is substantial admissible evidence that Trump had obstructed justice?
  • Does Mueller recommend that a U.S. Attorney proceed with investigating and prosecuting Trump for conspiracy or obstruction?
  • Does Mueller recommend Congress is a better venue to adjudicate Trump’s high crimes and misdemeanors?
  • Did Mueller’s investigation uncover whether Trump had committed crimes other than conspiracy with Russia or obstruction?

Barr’s summary is too ambiguous to be taken seriously. To dissect anything from it, one must first understand what regulations govern the Special Counsel’s decision making authority.

How was Mueller appointed and what governs his prosecutorial decision making?

The Attorney General appoints a Special Counsel to oversee a criminal investigation when the Attorney General is recused, there is a conflict of interest, or in other extraordinary circumstances where it would be in the public’s interest to appoint an outside Special Counsel. (28 C.F.R. § 600.1.)

Once the Special Counsel is appointed, he or she has the full power and independent authority to exercise all investigative and prosecutorial functions vested in each U.S. Attorney. For example, the authority to prosecute for all offenses against the United States. (28 USC §547.) And much of the Special Counsel’s prosecutorial decision making is governed by the DOJ’s Justice Manual.

In March 2017, then-FBI Director James Comey revealed to Congress that the FBI had already been investigating Russian interference in the 2016 presidential election.

“[The FBI was] authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump camaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts.”

Former FBI Director James B. Comey’s testimomy before the US House Permanent Select Committee on Intelligence. March 20, 2017.

In May 2017, Deputy Attorney General Rod Rosenstein appointed Mueller as Special Counsel to investigate Russian interference in the 2016 U.S. presidential election. By June 2017, the scope of Mueller’s investigation was expanded to include whether President Trump had obstructed justice.

Barr’s summary doesn’t reveal whether Mueller thought there was probable cause.

Mueller’s prosecutorial authority is governed by the DOJ’s Justice Manual. Before Mueller can pursue someone, the he must first conclude there is probable cause to believe a crime was committed.

Barr’s summary, however, does not even state whether Mueller believed there was probable cause to prosecute Trump. If Mueller didn’t think there was probable cause, Mueller’s investigation wouldn’t have lasted this long. Besides, Barr would’ve already boasted about it. If anything, Barr’s letter proves he is eager to please the President Trump. So, we are way beyond the threshold of probable cause.

Mueller’s final report must contain at least one of 5 options.

If in fact, Mueller believes there is probable cause to prosecute President Trump, the Justice Manual requires Mueller to consider whether to:

1. Commence or recommend prosecution;
2. Decline prosecution and refer the matter for prosecutorial consideration in another jurisdiction;
3. Decline prosecution and commence or recommend pretrial diversion or other non-criminal disposition;
4. Decline prosecution without taking other action; or,
5. Request or conduct further investigation.

(JM, §9-27.200)

Mueller likely chose options 2 and 5 and referred some of the issues to a U.S. Attorney’s Office for prosecution consideration or further investigation. Barr also probably made recommendations that Trump should be tried in Congress, where it’s most appropriate. Mueller didn’t indict Trump probably because the Justice Department’s policy is not to indict a sitting president. And why would Mueller have any authority to depart from Justice Department policies that he has an ethical obligation to follow?

Barr’s summary states that during the course of the investigation, Mueller “referred several matters to other offices for further action.”

“The attorney for the government should commence or recommend federal prosecution if he/she believes that the person’s conduct constitutes a federal offense, and that the admissible evidence will probably be sufficient to obtain and sustain a conviction, unless

1. the prosecution would serve no substantial federal interest;

2. the person is subject to effective prosecution in another jurisdiction; or

3. there exists an adequate non-criminal alternative to prosecution.”

(JM §9-27.220)

The safest steps Mueller could take would be to gather all of the evidence, summarize it, and refer the matter to a state prosecutor rather than a U.S. Attorney’s office becuase state prosecutors don’t have guidelines that prevent them from indicting a president. Also, if Trump were convicted under a state law, he could not be pardoned by any of his predecessors.

Mueller may also have believed that Congress’ ability to impeach and remove a president constituted an “adequate non-criminal alternative to prosecution.” (JM, §9-27.220(3).)

The Justice Manual provides that if a prosecutor declines to commence or recommend prosecution, he has to set forth the reasons. So, if Mueller ended up declining to prosecute or did not recommend prosecution, Barr probably would’ve already stated that. Instead Barr wrote that Mueller did not exonerate Trump.

What happens after the Special Counsel’s investigation is completed?

Once Mueller completed his investigation, he was required to provide the Attorney General with closing documentation in the form of a “confidential report explaining the prosecution or declination decisions reached by the Special Counsel.” (28 C.F.R. §600.8(c).)

What does Barr’s summary actually tell us?

Barr’s summary explains Mueller had considered whether any Americans–including individuals associated with the Trump campaign–joined the “Russian” conspiracies to influence the election. Barr reveals that Mueller had investigated efforts by the Russian Government and a private Russian organization called the Internet Research Agency (IRA) to interfere in the election.

Barr unnecessarily repeats himself three times in different ways on page 2.

“The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election.”

(Barr Summary, p. 2, ¶ 2, emphasis added.)

“As noted above, the Special Counsel did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated with the IRA in its efforts[.]”

(Barr Summary, p. 2, ¶ 3, emphasis added.)

“But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts[.]”

(Barr Summary, p. 2, ¶ 4, emphasis added.)

First, it’s not a Special Counsel’s job to “find” whether a crime had occurred–that’s what a jury is for. The Special Counsel only has authority to determine whether there is sufficient admissible evidence necessary to prosecute the matter.

The table below illustrates how Barr’s summary provides three vague descriptions of Russian crimes. And reveals Barr’s unusual descriptions of who was investigated as a potential may have been a co-conspirator.

Barr impermissibly “finds” no obstruction of justice.

Barr’s summary explains Mueller did not decide whether to prosecute President Trump for obstruction of justice. In fact, Mueller did not make a “traditional” prosecutorial judgment. This probably means Mueller thinks its better for the Senate to try a sitting president with the Chief Justice of the U.S. Supreme Court adjudicating the issues.

Barr and Rosenstein determined, on their own, that Mueller’s investigation did not provide sufficient evidence to establish that President Trump had committed an obstruction-of-justice offense.

“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.”

(Barr Summary, p. 3, ¶2.)

Barr’s subjective opinion of whether there is sufficient evidence to prosecute Trump for obstruction of justice is irrelevant.