Barr Summary of Mueller Reports: No Collusion, No Obstruction Prosecution

Ken AshfordL'Affaire Russe, Trump & AdministrationLeave a Comment

I had a busy weekend so I only read the Barr summary of the Mueller investigation which came down yesterday at 5 pm.

Let’s start with one truism: When prosecutors say that an investigation “did not establish” something, that doesn’t mean that they concluded it didn’t happen, or even that they don’t believe it happened. It means that the investigation didn’t produce enough information to prove that it happened. Without seeing Mueller’s full report, we don’t know whether this is a firm conclusion about lack of coordination or a frank admission of insufficient evidence. The difference is meaningful, both as a matter of history and because it might determine how much further Democrats in Congress are willing to push committee investigations of the matter.

With that kept in mind, I don’t think this development moves the ball at all from what we already knew. No “collusion” by Trump? I think we suspected that, but it doesn’t negate a willingness to collude with Russia by Don Jr and others in the campaign (i.e., the Trump Tower meeting), which Trump himself may have known about. That may not have legal implications, but it still has political ones. And Mueller clearly found *evidence* of obstruction by President Trump, which may not — in Barr’s opinion — rise to a prosecution level, but it doesn’t it doesn’t erase the cloud over the Administration either.

From a legal/criminal standpoint, my money has always been on non-Mueller issues anyway — that is, the SDNY and NY Attorney General investigations, which include campaign fraud (the unreported Stormy Daniels payoff), bank fraud (overstating his assets to get bank loans) insurance fraud (understating his assets to get favorable policies and possible bogus claims), tax fraud (does his income match what he tells the banks?), and even the emoluments clause violations. Trump has already (quietly) admitted to civil violations involving personal use of funds from his bogus Trump charity. That alone would bring down any other presidency.

With all that, we should remember that Russia DID try to influence the election, using social media infiltration and computer hacking, and this President’s absence of a response, while not illegal, is certainly negligent to the point of near complicity.

I think we need to consider that the Trump Tower Moscow wasn’t considered part of Mueller’s remit. In other words, if it didn’t have something to do with the “election interference” it wasn’t considered. And yet that is likely the real reason for Trump’s obsequious behavior toward Putin during the campaign and as president.

That’s a  matter of kompromat counterintelligence question and may not even be prosecutable without strong proof of the quid pro quo. But you can imagine that Trump certainly knew that Putin knew he was lying throughout the campaign and beyond about his business dealings in Russia.

And we may have to consider that Trump was a total dupe, manipulated at every stage by nefarious foreign actors which may just mean that he should be impeached for the high crime of being a corrupt authoritarian and a cretinous moron rather than a Russian agent.

Yes — Trump, his cohorts and his supporters are going to have a few days overplaying their we’ve-been-vindicated hand. That’s fine. But with the 2020 elections heating up, Trump is facing a slew of very serious legal problems — legal problems he never thought would see the light of day because he never expected to win — and those legal problems are destined for the front burner in the weeks and months to come.

This is what law professor Neal Katyasl writes in the New York Times:

Sometimes momentous government action leaves everyone uncertain about the next move. This is not one of those times. Congress now has a clear path of action. It must first demand the release of the Mueller report, so that Americans can see the evidence for themselves. Then, it must call Mr. Barr and Mr. Mueller to testify. Mr. Barr in particular must explain his rationale for reaching the obstruction judgment he made.
No one wants a president to be guilty of obstruction of justice. The only thing worse than that is a guilty president who goes without punishment. The Barr letter raises the specter that we are living in such times.

I’m pretty agnostic about the full Mueller report. While I would like to see what it says, I don’t think it will move the ball any more than the Barr summary letter. Nobody can say that Mueller’s decisions not to interview the president, or to recommend an obstruction charge, were out-and-out wrong. These are close judgment calls, and it seems to me that any non-election takedown of a President cannot be premised on a close call of any kind.

But the other legal problems of Trump do not fall in that category. If he committed bank fraud, that’s easily provable by the documentary evidence, or at least, certainly more provable than obstruction, which involves an inquiry into intent and motive. So my focus is on the New York investigations, and I am staying buckled up for those.


Barr’s summary of Mueller’s report is ominous for the president. While Mueller did not find that Trump obstructed his investigation, he also made a point of not reaching the opposite conclusion: that Trump didn’t obstruct the investigation. Indeed, he appears to have created a substantial record of the president’s troubling interactions with law enforcement for adjudication in noncriminal proceedings—which is to say in congressional hearings that are surely the next step.

What makes the document more complicated still is the fact that it offers only a skeletal description of Mueller’s report. It only purports to convey Mueller’s top-line findings and does not include any of the evidence or legal analysis that underlies those findings. It doesn’t tell any of the stories that the Mueller report will tell. It only distills and announces two high-altitude legal conclusions from those stories. Assuming that Barr is characterizing Mueller’s findings reasonably, that leaves a whole raft of questions unanswered about what those stories will be—and what their impact will be.


In laying out this summary, Barr’s letter reveals several new facts about Mueller’s obstruction probe. First, it notes that Mueller’s report covers several actions by Trump that could raise obstruction concerns, “most of which have been the subject of public reporting.” This confirms what has long been suspected: that Mueller believed that at least some of the president’s publicly reported actions—likely including some of his public actions—could raise obstruction problems. It also suggests that there are potentially obstructive acts that have not yet been reported. Barr’s letter thus leaves the distinct sense that Mueller’s detailed accounting of the president’s potential acts of obstruction is significant, regardless of Barr’s own judgment as to the criminality of any of those acts.

It also makes clear that the Mueller report creates an extensive record on the obstruction question. And that may well be the point. After all, what is the point of a prosecutor’s amassing a factual record and then refusing, as Mueller apparently has refused, to evaluate it in a traditional prosecutorial framework? The answer the letter suggests but does not state is that the Mueller report has teed up the question of presidential obstruction for evaluation by a different actor—to wit, by Congress—on a decidedly noncriminal basis. Mueller, being barred from indicting the president, has done the investigation, has apparently declined even to evaluate the matter as a prosecutor, and has laid out all of the facts and the arguments for and against treating the president’s behavior as criminal. It is now for other actors to decide whether the conduct Mueller describes is acceptable in a president. 

While Mueller left the question of criminality unaddressed, Barr himself did not. Barr opines that Mueller’s “decision to describe the facts of his obstruction inquiry without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime”—though it is not clear why Barr felt this to be the case. Barr includes his own determination, along with Deputy Attorney General Rod Rosenstein’s, that Mueller’s evidence “is not sufficient to establish that the President committed an obstruction-of-justice offense.”

In justifying this view, Barr notes Mueller’s determination that “the evidence does not establish that the President was involved in an underlying crime related to Russian electoral interference” and argues that the lack of evidence of an underlying crime, though not dispositive, “bears upon the President’s intent with respect to obstruction.” The report does not identify any actions that, in Barr’s and Rosenstein’s view, “constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent,” each of which must be proven beyond a reasonable doubt in order to establish the crime of obstruction of justice under Justice Department guidelines.

Notably, Barr says that his and Rosenstein’s assessment was made independently of constitutional questions about the indictment and criminal prosecution of a sitting president. Though Barr does not make reference to any concerns over the interaction between presidential authority and possible obstruction offenses, it is worth keeping in mind his memorandum on the subject from June 2018, in which he argued that conduct authorized by Article II definitionally cannot constitute obstruction.

Finally, Barr indicates that more material from Mueller’s report is forthcoming, writing that his office is at work identifying information protected by Federal Rule of Criminal Procedure 6(e)—which protects material obtained before a grand jury from public disclosure—and “information that could impact other ongoing matters.” After that, Barr writes, he “will be in a position to move forward expeditiously in determining what can be released.”

So the good news is that there is more information on the way—though it is unclear how much more or when it will appear. Democratic members of Congress, including Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer, are already calling for the report to be released in its entirety. Pelosi and Schumer released a joint statement indicating skepticism of what they call “Mr. Barr’s public record of bias against the Special Counsel’s inquiry,” and House Judiciary Committee Chairman Jerry Nadler indicated that his committee will call on Barr to testify. Chairman of the Senate intelligence committee Richard Burr, for his part, thanked the attorney general for his letter and called for the release of “as much of the report as possible.”

The White House has, predictably, taken the opportunity to gloat: Press Secretary Sarah Huckabee Sanders, echoing the president, declared Barr’s letter to be a “total and complete exoneration of the President.” Senate Majority Leader Mitch McConnell blandly announced his hope that “the Special Counsel’s report will help inform and improve our efforts to protect our democracy.” Donald Trump Jr. chose to blast what he called “Collusion Truthers.”

Whether this proves the beginning of the end of L’Affaire Russe or the prelude to a series of additional disclosures about activity on the part of the Trump campaign and the president himself that are disturbing but happen to fall just short of criminal activity, it is important not to lose sight of the significance of the investigation having been completed. That Mueller was able to complete his probe into a sitting president without having his investigation blocked—despite ongoing presidential braying against the probe and menacing of the Justice Department’s leadership—is no small thing.

That Mueller was able to write his report, to document his findings in a fashion that can allow for transparency and, if necessary, accountability, is of immense value. The question of what to do with the record Mueller has compiled will ultimately fall to Congress.