Attorney General Barr Testifies Before Senate Judiciary

Ken AshfordCongress, L'Affaire Russe, Trump & AdministrationLeave a Comment

Despite what he testified to earlier, we learned last night that AG Barr was fully aware that Mueller did not care for Barr’s summary of the Mueller Report. In fact, Mueller sent Barr a letter explicitly complaining about Barr’s characterization of the investigation’s conclusions.

The letter, dated March 27, was the second correspondence Mueller sent to Barr after the attorney general provided a summary of the Russia report to Congress on March 24. (Mueller also sent a letter the day after, on March 25.) In them, the special counsel expressed concern that Barr’s interpretation failed to capture the complexities of his nearly two-year investigation.

Barr has stood firm on the premise that he did not block or deny Mueller in any way. In his prepared remarks for today’s hearing for instance, he declares: “As I informed Congress on March 22, 2019, at no point did I, or anyone at the Department of Justice, overrule the Special Counsel on any proposed action.”

But we know this is simply not true. By making a prosecutorial decision on the obstruction case against President Trump, Barr fundamentally overruled Mueller on the essential question of whether a prosecutorial decision should be made at all. It is as consequential a decision as Barr could have possibly made under the circumstances. And in doing so, as I’ve said before, he wrested power away from the special counsel, from future prosecutors who might look to prosecute Trump post-presidency, and from Congress.

Barr showed baldfaced mendacity in declaring that he didn’t deny Mueller anything while actually denying Mueller his entire approach to laying out the obstruction of justice case. Mueller’s rationale for not reaching a conclusion on obstruction was not the only way to approach the issue, but it was consistent with DOJ guidelines and was made in good faith. It was a core feature of the report and of Mueller’s entire approach to the investigation.

Barr overruled him on that, using a legal reasoning that he has yet to publicly explain. Mueller’s approach did not by default leave it to the attorney general to decide. Barr took that upon himself, and he continues not only to deny that he did so, but to seek credit for leaving Mueller alone. It’s preposterous.

I guess we know now why Mueller wasn’t there the day Barr held his notorious press conference.

This is big. Mueller was the one person in the whole country who could have truly validated Trump and Barr’s interpretation of the report’s conclusions. 

He didn’t.

The Hill reports:

“I think his statement is deliberately false and misleading, and yes, most people would consider that to be a lie,” Schiff said on CBS This Morning.

“Look, there’s no sugar coating this, I think he should step down. It’s hard, I think, for the country to have confidence in the top law enforcement official in the country if he’s asked a direct question as he was and he gives a directly false answer, so this is serious business.”

“After two years and work and investigation implicating the president of the United States, for the attorney general to mislead the public for an entire month before releasing that report is inexcusable.”

Barr is now testifying before the Senate Judiciary Committee:

He is doing A LOT of obfuscating!

Barr once again says he didn’t want to release the report in a “piecemeal” fashion, which is why he … wrote a four-page letter summarizing a 450-page report using only four partial sentences from the actual report.

The Republicans on this committee are all about Hillary emails.

Klobuchar is going episode by episode here through the Mueller report on potential obstruction of justice. She is asking Barr to explain how each action individually and all of them collectively does not constitute obstruction. Barr has not ceded any ground on his conclusions.

As the hearing continues, the NY Times publishes an op-ed by James Comey in real time:

People have been asking me hard questions. What happened to the leaders in the Trump administration, especially the attorney general, Bill Barr, who I have said was due the benefit of the doubt?

How could Mr. Barr, a bright and accomplished lawyer, start channeling the president in using words like “no collusion” and F.B.I. “spying”? And downplaying acts of obstruction of justice as products of the president’s being “frustrated and angry,” something he would never say to justify the thousands of crimes prosecuted every day that are the product of frustration and anger?

How could he write and say things about the report by Robert Mueller, the special counsel, that were apparently so misleading that they prompted written protest from the special counsel himself?

How could Mr. Barr go before the Senate Judiciary Committee on Wednesday and downplay President Trump’s attempt to fire Mr. Mueller before he completed his work?

And how could Rod Rosenstein, the deputy attorney general, after the release of Mr. Mueller’s report that detailed Mr. Trump’s determined efforts to obstruct justice, give a speech quoting the president on the importance of the rule of law? Or on resigning, thank a president who relentlessly attacked both him and the Department of Justice he led for “the courtesy and humor you often display in our personal conversations”?

What happened to these people?

I don’t know for sure. People are complicated, so the answer is most likely complicated. But I have some idea from four months of working close to Mr. Trump and many more months of watching him shape others.

Amoral leaders have a way of revealing the character of those around them. Sometimes what they reveal is inspiring. For example, James Mattis, the former secretary of defense, resigned over principle, a concept so alien to Mr. Trump that it took days for the president to realize what had happened, before he could start lying about the man.

But more often, proximity to an amoral leader reveals something depressing. I think that’s at least part of what we’ve seen with Bill Barr and Rod Rosenstein. Accomplished people lacking inner strength can’t resist the compromises necessary to survive Mr. Trump and that adds up to something they will never recover from. It takes character like Mr. Mattis’s to avoid the damage, because Mr. Trump eats your soul in small bites.

It starts with your sitting silent while he lies, both in public and private, making you complicit by your silence. In meetings with him, his assertions about what “everyone thinks” and what is “obviously true” wash over you, unchallenged, as they did at our private dinner on Jan. 27, 2017, because he’s the president and he rarely stops talking. As a result, Mr. Trump pulls all of those present into a silent circle of assent.

Speaking rapid-fire with no spot for others to jump into the conversation, Mr. Trump makes everyone a co-conspirator to his preferred set of facts, or delusions. I have felt it — this president building with his words a web of alternative reality and busily wrapping it around all of us in the room.
I must have agreed that he had the largest inauguration crowd in history because I didn’t challenge that. Everyone must agree that he has been treated very unfairly. The web building never stops.

From the private circle of assent, it moves to public displays of personal fealty at places like cabinet meetings. While the entire world is watching, you do what everyone else around the table does — you talk about how amazing the leader is and what an honor it is to be associated with him.

Sure, you notice that Mr. Mattis never actually praises the president, always speaking instead of the honor of representing the men and women of our military. But he’s a special case, right? Former Marine general and all. No way the rest of us could get away with that. So you praise, while the world watches, and the web gets tighter.

Next comes Mr. Trump attacking institutions and values you hold dear — things you have always said must be protected and which you criticized past leaders for not supporting strongly enough. Yet you are silent. Because, after all, what are you supposed to say? He’s the president of the United States.

You feel this happening. It bothers you, at least to some extent. But his outrageous conduct convinces you that you simply must stay, to preserve and protect the people and institutions and values you hold dear. Along with Republican members of Congress, you tell yourself you are too important for this nation to lose, especially now.

You can’t say this out loud — maybe not even to your family — but in a time of emergency, with the nation led by a deeply unethical person, this will be your contribution, your personal sacrifice for America. You are smarter than Donald Trump, and you are playing a long game for your country, so you can pull it off where lesser leaders have failed and gotten fired by tweet.

Of course, to stay, you must be seen as on his team, so you make further compromises. You use his language, praise his leadership, tout his commitment to values.

And then you are lost. He has eaten your soul.

There was an interesting moment during Blumenthal’s questioning. Barr said “we have an election” coming up. Basically, he was suggesting that it’s up to American voters — and no longer the Justice Department — to decide about Trump’s behavior.

Wow. Full-on attack by Senator Hirono, calling Barr Trump’s lawyer, not the head of the Justice Department.

Barr just said there were “problems” at the FBI during the 2016 election. I think that’s the furthest he’s gone in attacking the FBI. He described its leadership at the time as “a few people at the top getting it in their heads they know better than the American people.”

Now Barr getting defensive. This is Barr’s strongest defense of Trump, saying he has been wrongly accused of being a treasonous foreign agent. “Two years of his administration have been dominated by the allegations that have now been proven false.” PROVEN FALSE???

Now Kamala Harris. Harris now asks Barr whether the president or anyone else has suggested that the Justice Department open an investigation into someone.

Barr is hedging. “They have not asked me to open an investigation, but…”

“Hinted?” Harris says. “Inferred?” She, then, moves on.

Kamala: “Has the president asked you to open an investigation of anyone?

Barr: [awkward silence]

Kamala: “Yes or no?”

He can’t figure out how to answer.

Harris is training attention on a persistent question in this investigation: How could Rod Rosenstein, the deputy attorney general overseeing the investigation, also be a witness?

So far, it is not clear from this hearing how Mueller thought the question of whether there was sufficient evidence of obstruction by Trump would ultimately be resolved. Barr corrected one of the senators, saying about Mueller, “He didn’t say he was leaving it to me.”

This is interesting. Barr is very invested in blaming the reporting around his letter as the cause of Mueller’s concern, not the content. But Senator Blumenthal finally hits on the point that Mueller does not complain about the media coverage in his letter.

Barr says that he got on the phone with Mueller after getting his letter and said, “Bob, what’s with the letter?” Why not just call?

Barr now states clearly that his (Barr’s) second letter to Congress, in which he stressed that his first communication should not be read as a full summary, was in response to Mueller’s frustration.

And we’re done.

Reactions collected by the Washington Post’s Jennifer Rubin:

[F]ormer acting solicitor general Neal Katyal observes, “Barr has been evasive and misleading from the first paragraph. It’s conduct totally unbecoming of an attorney general. He’s not even very good at misleading.”

Fordham law professor Jed Shugerman were more blunt. “This is nuts . . . just bonkers, ” he told me mid-morning.

Among Barr’s worst moments: Claiming there was a difference between seeking to remove special counsel Robert S. Mueller III for “conflicts” (which never existed), or firing him; claiming, despite the language of Mueller’s letter, that he did not think Mueller found Barr’s four-page letter from March 24 misleading; claiming that he did not release Mueller’s summaries because the entire report had to be released (yet Barr released his own four-page letter, which he refused to characterize as a “summary”); and claiming that Mueller refused to reach a prosecutorial decision (despite the Office of Legal Counsel (OLC) guidelines prohibiting prosecution of a sitting president) because of insufficient evidence.

Again and again, the attorney general resorted to word games. He didn’t lie, he now argues, when he told committee members that he was unaware of the Mueller team’s objections because he was referring to the team, not to Mueller. (Isn’t Mueller part of his own team?) On the difference between removing Mueller for phony conflicts and firing him, Shugerman says, “I cannot understand his explanation on Trump manufacturing a conflict of interest as distinguishable from firing. Both are impeding an investigation.”

“Barr’s testimony has been disgraceful,” constitutional scholar Laurence H. Tribe tells me. “He’s betraying his oath as the nation’s chief law enforcement officer, acting as though he were Donald Trump’s personal defense attorney.” Tribe continues, “He has been purposely misleading, both on ‘collusion’ and on whether Mueller would’ve recommended indicting President Trump if only he had thought the evidence warranted doing so — something Barr knows full well [Justice Department] policy flatly prohibited.”

Tribe adds, “Even when Barr isn’t dissembling, he’s manifestly slippery and evasive. Barr’s answers manifest the kind of sophistry that gives lawyers and the legal profession a bad name. It’s quite clear that Barr would be shredded by the kind of cross-examination by staff that he has told the House Judiciary Committee he wants to avoid.”


If Democrats before had suspected Barr was being intentionally deceptive, acting more like a slick lawyer defending a client than an attorney general presenting the findings of a prosecutor appointed by his own department, this performance will convince them he is intentionally fencing with Congress to minimize the president’s wrongdoing. One cannot read the 10 categories of conduct and Mueller’s recitation of the OLC letter without concluding that the special counsel was leaving the matter to Congress. Barr, in denying the plain meaning of Mueller’s report and deciding a prosecutorial decision had to be made, ignores history (e.g., special prosecutor Leon Jaworski made a referral to Congress during the Watergate scandal) and twists Mueller’s words (in particular, intimating that Mueller wasn’t affected by the OLC letter).

Barr has more testimony to give before the House Judiciary tomorrow… maybe. The House Judiciary Committee voted earlier today to allow staff (i.e., skilled lawyers) to question Attorney General William Barr during his hearing on the special counsel’s report on Russian interference in the 2016 election, raising the possibility that he won’t show up. Barr warned Democrats days ago that he won’t appear before the committee, scheduled for Thursday morning, if they stick to the format.