Imagine Bill Barr picking up the phone one afternoon earlier this month and finding Robert Mueller on the line, informing him that he’s the one who’ll have to make the call on whether the president obstructed justice.
Barr had been on the job around two weeks at that point.
CNN’s report here somewhat debunks the claim that Barr made a snap judgment about obstruction after he received the report and rushed out a summary absolving the president of wrongdoing. He’d been thinking about this issue for weeks thanks to Mueller’s heads-up. What’s not clear to me from this, though, is what information Barr had while he was thinking about it. Did Mueller give him advance notice of the evidence against Trump on obstruction?
And why did Mueller give him advance notice at all? He could have just dropped the report in Barr’s lap and said, “Your call on obstruction, Bill.”
Roughly three weeks ago the special counsel’s team told Attorney General Bill Barr and Deputy Attorney General Rod Rosenstein that Robert Mueller would not be reaching a conclusion on obstruction of justice, according to a source familiar with the meeting.
The source said that conclusion was “unexpected” and not what Barr had anticipated.
The information also means that Barr had a head start on developing his analysis on obstruction of justice well before Mueller delivered his report to the attorney general on Friday. Rosenstein’s office has also been heavily involved in overseeing the investigation since its inception.
The “head start” may have amounted to Barr and Rosenstein consulting Department precedent and developing a framework for how to analyze the evidence once Mueller submitted it. For instance, should lawful exercises of presidential power (e.g., firing Comey) be considered in an obstruction analysis, as part of the totality of the evidence, or excluded on grounds that lawful behavior by definition can’t be a crime? Also, what mitigating factors might be considered in weighing obstruction? The president is the only person in America with the legal authority to halt a federal criminal investigation into him and his associates. Trump had it in his power to fire Rosenstein and Mueller and to end the investigation but chose not to, however reluctantly. Can there be obstruction if he acquiesces in letting the probe finish on the special counsel’s own timetable? Answer: Well, yes, if he tried to tamper with evidence and/or witnesses. But what if he didn’t?
Barr and Rosenstein may have spent the month wrestling with questions like that, developing a list of “Trump is guilty if…” factors in advance and then hashing out an analysis this weekend after they got the report. The very first line of the obstruction section from Barr’s summary refers to “a number of actions by the President – most of which have been the subject of public reporting.” Note that “most.” Evidently it’s not just firing Comey and chattering to the media about pardons that caught Mueller’s attention; there’s stuff we don’t know about yet that was part of the obstruction case. That’s where Barr’s and Rosenstein’s legal framework would have been applied, to analyze that new evidence. If, as Barr claims, most of the actions referenced by Mueller in his obstruction report were already public knowledge then Barr and Rosenstein may have formed a preliminary judgment about whether Trump obstructed the probe, with only details about the new evidence left to possibly sway their opinion. Depending on how much new evidence there turned out to be, they might have finalized a conclusion fairly quickly.
I don’t think that’s going to satisfy Democrats, though.
One of the many lingering questions right now among anti-Trumpers is why Trump would have even flirted with obstruction knowing all along that he was innocent of collusion. If you have every reason to believe you’ll be cleared at the end, why fire Comey in the first place? Why (allegedly) try to fire Mueller before being talked out of it by your advisors? The answer may be this simple: Between the Steele dossier, the media’s overwhelming rooting interest in seeing Trump removed from office, and his own populist tensions with official Washington, Trump might have believed in earnest that Mueller was out to railroad him. It wasn’t just an applause line for his rallies or a PR stunt to damage the credibility of the investigation. The “witch hunt” refrain was probably his sincere belief, to the point where it led him towards arguably obstructionist behavior. Imagine his surprise to find that Mueller did his job honestly. Exit quotation:
Reporter: Do you think Special Counsel Mueller acted honorably?
President Trump: "Yes, he did. Yes, he did." pic.twitter.com/IMW5lr4XgM
— NBC Nightly News with Lester Holt (@NBCNightlyNews) March 25, 2019