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With great fanfare, self-appointed Attorney General Bill Barr has issued a press release, with the supposed help of Deputy AG Rod Rosenstein, purporting to exonerate President Trump and his cronies of any collusion with the Russians, and exonerating Trump from any obstruction of justice charges. Trump has begun his victory lap, and his blind followers are cheering.

william barr

Wait a minute.

The four-page letter Barr wrote yesterday to the four top members of the Senate and House Judiciary Committees, which I have in my possession, does not do any of this. I have gone over this letter line by line. Here are my top takeaways:

1. Russia interfered in the 2016 U.S. Presidential election, but Mueller supposedly "did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated entities to assist the Trump campaign."

Without access to the Mueller report itself, this statement is hard to evaluate, and it is also hard to believe. Paul Manafort's connections with Russian operatives, the softening of the platform at the Republican Convention regarding arming Ukraine against Russia, Roger Stone's contacts with WikiLeaks, and the June, 2016 meeting of Donald Trump Jr., Jared Kushner and Paul Manafort with six Russian operatives in the Trump Tower, as well as Michael Flynn's multiple contacts with the Russians in 2016 all support, at a minimum, attempts to conspire and/or coordinate with the Russians during the 2016 Presidential election.

On March 31, 2016, at the unfinished Trump International Hotel in Washington, D.C., Trump convened a loosely-organized foreign policy team. At that meeting, Trump emphasized that he wanted to soften the American position toward Putin and Russia, and did not want to "start World War III" with them. His campaign aides had their marching orders, and whether or not Trump continued to monitor and oversee these efforts in the remaining seven months of the campaign has not yet been determined to my knowledge. Only Mueller knows...

Trump does not use email, and may have developed a Mafia-like way of doing business which centers on "deniability": he never directly issues orders, but does so through key trusted lieutenants.

Trump does not use email, and may have developed a Mafia-like way of doing business which centers on "deniability": he never directly issues orders, but does so through key trusted lieutenants, in his case family members Donald Trump, Jr. and Jared Kushner. The two of them were interviewed by Mueller, and Trump, Jr. has reportedly stated that he expected to be indicted, but he apparently has not been so far.

If Mueller wanted a "smoking gun" before finding any collusion by Trump and/or his operatives, it may not be there, but certainly there were attempts to conspire to collude by Trump's associates that are on the public record. Recall that Nixon was impeached largely for his orchestrating the coverup of Watergate; there is no evidence that he ordered the breakin, but merely that he created an atmosphere that led his operatives to believe that Nixon wanted it done.

In a footnote, Barr states that "In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign 'coordinated' with Russian election interference activities. The Special Counsel defined 'coordination' as an 'agreement - tacit or express - between the Trump Campaign and the Russian government on election interference'." It is possible that, for example, the softening of the Platform at the GOP convention regarding arming Ukraine was not considered by Mueller as interfering in the election, since it happened at the convention and did not relate directly to the election. I think that such a conclusion by Mueller would be hair-splitting, since it clearly had some relevance to the campaign (and shortly thereafter WikiLeaks released a load of hacked Clinton-related emails obtained from the Russians), but we will have to await the Mueller Report itself to make a judgment on the relevance of this footnote.

Mueller, a life-long Republican, may have shrunk from finding that a sitting President of the United States is a traitor to his country without evidence beyond ANY doubt, not just beyond a reasonable doubt. A point no one has made is that some of his subordinates on the Mueller team, now out of the government, may not agree with Mueller's tentative conclusions in the Report, and may soon be speaking out openly or confidentially.

2. "The report did not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have not been made public."

I was convinced that there are a number of sealed indictments that have not been made public, based on the following information:

  • An investigative reporter in St. Louis disclosed to me personally that he had seen a number of sealed documents in the files of the U.S. District Court in Washington, D.C., where Mueller and his team filed their indictments, which this reporter believed were sealed indictments. He may have been wrong, or the sealed indictments were not filed by Mueller but by others in the DOJ on unrelated matters.
  • A document that prosecutors said was filed by mistake in November, 2018 asked a judge to seal documents in a criminal case unrelated to WikiLeaks founder Julian Assange, but which revealed that there is a sealed indictment of Assange which has been filed. This sealed indictment has not yet been unsealed and served on Assange.
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  • The Barr interpretation of the Mueller Report states that "the Special Counsel also referred several matters to other offices for further action." Perhaps the sealed indictments reside in the U.S. District Courts in Alexandria, Virginia, New York City and/or elsewhere.

3. Obstruction of Justice

The Barr press release states that "After making a 'thorough factual investigation' into these [obstruction of justice] matters, the Special Counsel considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment." The Barr letter went on to state importantly that "The Special Counsel did not draw a conclusion - one way or another - as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as 'difficult issues' of law and fact concerning whether the President's actions and intent could be viewed as obstruction."

Mueller states that "while this report does not conclude that the President committed a crime, it also does not exonerate him." In other words, Mueller punted to the Attorney General and Congress to determine if the President is guilty of a crime or has committed High Crimes and Misdemeanors in his conduct after being elected President. Barr goes on to state that he and Rosenstein "have concluded that the evidence developed during the Special Counsel's investigation is not sufficient to to establish that the President committed an obstruction of justice offense."

Barr is a man who sent an unsolicited brief to the President that he had immense powers, could not be indicted while in office, and could do almost anything he wanted without challenge by anyone. Trump anointed this guy as his boy in the AG's office. Let's remember at this point that AGs in the past have gone to jail for pimping for the President rather than acting as the top law officer in the U.S. Case in point: John Mitchell, Nixon's AG during Watergate. A friend who was a classmate of Barr at Columbia in the late 1960s told me that while most undergraduates in the early 70s at Columbia wore hippie clothing and had long hair, Barr went to class wearing a coat and tie and had short hair. A real snowflake, a classic Republican...

And Rosenstein is also a life-long Republican, who was bullied by Trump into writing a memo condemning FBI Director Comey for his conduct regarding Hillary Clinton before the election as the grounds for Trump to fire him. Trump himself, in an interview with Lester Holt, punctured this rationale by stating that it was "the Russian thing" that was the real reason why Comey was fired. How is this not obstruction of justice, firing the man who was investigating you for colluding with the Russians to get elected President?

Here is the tortured logic that Barr used to reach the conclusion that there was no obstruction of justice:

He states that "the report identifies no actions that, in our judgment
[that is, in the judgment of Barr, and Rosenstein to some extent, and not necessarily Mueller]
constitutes obstructive conduct, had a nexus to a pending or contemplated proceeding
[in other words, a pending or contemplated grand jury proceeding known to Trump at the time of his supposed obstruction], and were done with corrupt intent" [how do we know that Trump had corrupt intent if he denied it repeatedly orally and in his written statement to Mueller and was never interviewed by Mueller under oath?].

All three of these things, in Barr's mind "under the Department's principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction of justice offense". If any one of them could not be proven beyond a reasonable doubt, the President could not be charged, using Barr's tortured logic.

The game plan of Trump and Barr seems to be to try to deny Congress access to the full Mueller Report, even to the point of taking it to their friends on the Supreme Court to decide if it can be released to Congress, hopefully after the 2020 election, and if this delaying tactic fails, to assert that Congress must keep the report sealed and not released to the public due to the national security issues discussed therein. Or redacted to the point that it is unreadable.

Several problems exist with this strategy:

  • The U.S. Attorney's Office in the Southern District of New York is conducting its parallel investigation, as is the New York State Attorney General's office;
  • The House of Representatives, under the control of the Democrats, will conduct a multitude of investigations over the next 20 months until the 2020 election; and
  • Some of Mueller's prosecutorial staff may have thumb drives of drafts of the Mueller Report and all the backup documents, which somehow find their way to the New York Times and/or the Washington Post.

Game over, Mr. President…

Ted Vaill

ted vaill