Attorney General Bill Barr's handling of the Mueller report has confirmed the worst suspicions of his critics, and is doing further damage the reputation of the Department of Justice.
When Barr was nominated to be attorney general, many argued that he should not be confirmed or only confirmed if he agreed to recuse himself from overseeing the special counsel’s investigation into Russia’s attack on the 2016 election, as well as possible obstruction of justice by President Trump into that investigation. Those calls were largely because Barr had written a now infamous 19-page unsolicited memo to the deputy attorney general overseeing the investigation that was subsequently shared with Trump's legal team. The memo explained why, in Barr’s view, many of the publicly known facts about Trump’s conduct could not constitute the crime of obstruction of justice under the statute because of Barr’s extremely broad view of executive power and executive privilege. Those arguments against Barr’s nomination fell flat and calls for his recusal unheeded.
I was one of several alumni of the Department of Justice who was inclined to give Barr the benefit of the doubt. In my experience, people like Barr who have worked for decades within the DOJ understand the unique importance of its independence and integrity and the need for the public to have faith that decisions made at DOJ are based on facts, evidence, and law and not political considerations. In my experience, the pull of DOJ helps ensure that people, in the words of my former boss and friend Preet Bharara, “do the right thing, in the right way for the right reasons.” And so it is with some sadness that I say, Barr did absolutely the wrong thing, in the wrong way, and one can certainly infer bad reasons in his handling so far of the special counsel's report.
When Robert Mueller gave his report to Barr without any conclusion on whether Trump's conduct constituted obstruction of justice, Barr had several options available to him. He could have immediately sought a court ruling to unseal much of the report's content that contained grand jury material — excluding information about any on-going investigations and classified information — and turned over to Congress as much of the report (at least on obstruction) as possible without any immediate public comment. Or he could have simply made public Mueller’s statement that while the report “does not conclude that the president committed a crime, it also does not exonerate him” and let the facts laid out by Mueller speak for themselves.
Instead, Barr wrote his own letter to Congress. He went one giant step further than Mueller and made his own determination—a conclusion based on a flimsy legal analysis—that because there was no "underlying" crime established, and because many of Trump’s acts were public, no intent to obstruct could be established.
In 48 hours, in just a few short paragraphs, Barr essentially threw out the window the facts, findings, nuances, and “difficult questions of law and fact” of Mueller’s nearly two-year investigation which, to any rational observer, was thorough and conducted with integrity.
Coming from the man who had written the 19-page memo saying Trump couldn’t commit obstruction, this looked pre-determined and political -- like a lawyer trying to protect his client, not a public servant trying to get the truth and facts where they belong.
Since the time of the four-page letter, we have learned from reporting in the New York Times, the Washington Post, and NBC News, that at least some on Mueller’s team felt that Barr misrepresented their findings as more favorable to Trump than they actually were. In addition, they were reportedly surprised and displeased that Barr had decided to insert his own decision about obstruction.
Perhaps most shocking, we learned from the Washington Post that the report may have been prepared “so that the front matter from each section could have been released immediately — or very quickly.... It was done in a way that minimum redactions, if any, would have been necessary, and the work would have spoken for itself.” If that turns out to be correct, and Barr simply ignored this option, his conduct goes from looking bad to worse.
For his part, Barr has put out several statements claiming that his initial letter was not meant intended to be a summary of the report and he did not think the report should be released “piecemeal.” Further, New York Times reporting from “officials familiar with the attorney general’s thinking,” claim that Barr “limited the details they revealed [in the letter] because they were worried about wading into political territory, Mr. Barr and his advisers expressed concern that if they included derogatory information about Mr. Trump while clearing him, they would face a storm of criticism like what Mr. Comey endured in the Clinton investigation.”
But, of course, this is quite different from the Comey-Clinton situation.
In that case, Comey revealed details about an investigation of a private citizen against whom the DOJ could have filed charges, if it had so chosen. Therefore, it was unquestionably a break with DOJ policy, whatever one thinks of the merits of Comey’s conduct. In this case, the president — also under DOJ policy — cannot be indicted and so the very purpose of the special counsel investigation is to gather facts and put those facts in the hands of Congress who can potentially hold the president accountable in some way.
I believe that this is what Mueller intended when he did not draw a legal conclusion on obstruction in his report. Barr’s decision to render that judgment himself did the opposite of what he claims to have strived for—he waded waist deep into political territory,
At this point, whatever Barr’s intentions—and I am no longer inclined to give him the benefit of the doubt—in order to salvage what is left if the integrity of the process, he must immediately release the Mueller-prepared summaries and work with Congress to ensure that the whole report is turned over to Congress, and as much as legally and safely possible to the American public.
This is Barr's final chance to salvage his reputation and, more importantly, the integrity of the Justice Department he claims to hold so dear.