“Absence of such evidence.” One reason to be suspicious of Barr’s conclusions is that in the course of the letter, he tweaks Mueller’s opinion to look more like his own. Mueller’s report, as excerpted by Barr, says “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” Barr quotes that line and then, in the same sentence, concludes that “the absence of such evidence bears upon the President’s intent with respect to obstruction.” But the excerpt from Mueller’s report doesn’t refer to an absence of evidence. It refers to a presence of evidence, and it says this evidence isn’t enough to prove a crime. Throughout the investigation, this has been a standard Republican maneuver: misrepresenting an absence of proof as an absence of evidence. Barr’s use of this maneuver in his letter is a red flag that he’s writing partisan spin.
“Underlying crime.” When Barr concludes that Trump shouldn’t be charged with obstruction, he bases this on his prior decision not to charge Trump with conspiracy. Since “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” Barr argues, there was no “pending or contemplated proceeding” that Trump’s behavior could have obstructed. This argument has many problems, but let’s start with the simplest one: 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. If Trump asked then–FBI Director James Comey to drop his investigation of Flynn, that’s fine.