Post by Deleted on Mar 24, 2019 19:08:27 GMT -5
As it happens, Ken White (Popehat) beat me to writing exactly what I would have written about the Barr letter. Neal Katyal laid out some good stuff, too.
I'll comment on the Mueller report when I see the Mueller report. But we are not reading the Mueller report. We are reading a deeply partisan lawyer's (one who has already indicated in the past that he was opposed to the investigation) incredibly rushed cherry-picked spin on the report. (Seriously -- 48 hours. We don't know how long Mueller's report is, but trust me, it ain't short.) The very few (and often partial) quotes we have from Mueller lead me to think that the actual report is in fact quite damaging. The Barr letter reeks of lawyer weasel words, and yes, I know 'em when I see 'em (as do Ken White and Neal Katyal). I trust Mueller. Frankly, I don't trust Barr at all.
From Ken's piece:
www.theatlantic.com/ideas/archive/2019/03/barr-mueller/585628/
From Neal's piece:
www.nytimes.com/2019/03/24/opinion/barr-mueller-report.html?action=click&module=Opinion&pgtype=Homepage
ETA:
Also good (thread):
I'll comment on the Mueller report when I see the Mueller report. But we are not reading the Mueller report. We are reading a deeply partisan lawyer's (one who has already indicated in the past that he was opposed to the investigation) incredibly rushed cherry-picked spin on the report. (Seriously -- 48 hours. We don't know how long Mueller's report is, but trust me, it ain't short.) The very few (and often partial) quotes we have from Mueller lead me to think that the actual report is in fact quite damaging. The Barr letter reeks of lawyer weasel words, and yes, I know 'em when I see 'em (as do Ken White and Neal Katyal). I trust Mueller. Frankly, I don't trust Barr at all.
From Ken's piece:
www.theatlantic.com/ideas/archive/2019/03/barr-mueller/585628/
Trump’s triumphant supporters notwithstanding, we don’t yet know what that means. When a prosecutor says that an investigation “did not establish” something, that doesn’t mean they concluded it didn’t happen, or even that they don’t believe it happened. It means the investigation didn’t produce enough information to prove that it happened. Without seeing Mueller’s full report, we don’t know whether this was 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 may determine how much further Democrats in Congress are willing to push committee investigations of the matter.
The other big reveal in Barr’s letter is that Mueller “determined not to make a traditional prosecutorial judgment” about whether the President has obstructed justice in the course of the two-year investigation of Russian interference in the election. Instead, Mueller laid out the relevant evidence “on both sides” of the issue but did not resolve what the special counsel saw as the “difficult issues” of fact and law concerning “whether the President’s actions and intent could be viewed as obstruction.” Mueller’s report “does not conclude that the President committed a crime, it does not exonerate him.” Mueller punted.
Why would Mueller spend so much time investigating obstruction of justice but not reach a conclusion? We won’t know until we read his report. But Robert Mueller, a career G-Man, is fundamentally legally conservative. That means he has a narrow view of his own role and a healthy respect for the authority of the other branches of government. He may believe that the evaluation is so inherently political that no conclusion he could offer would ever be seen as legitimate, and the matter is better resolved through Congress’s constitutional authority to impeach (or not) the president. Even if Mueller didn’t make an explicit recommendation, we’ll probably be able to infer his conclusions by reviewing how he marshalled the evidence for and against guilt. Prosecutors, as a rule, are not good at neutral renditions of facts.
The attorney general showed no such circumspection. In less than 48 hours, he and Deputy Attorney General Rod Rosenstein—who supervised Mueller for most of his investigation—“concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offence.” Though Barr emphasized that he and Rosenstein had been involved in evaluating the status of the investigation for months, and that they consulted the Office of Legal Counsel and other Department of Justice experts, this conclusion reflects startling and unseemly haste for such a historic matter.
Crucially, we don’t know whether Barr concluded that the president didn’t obstruct justice or whether he couldn’t obstruct justice. Well before his appointment, Barr wrote an unsolicited memo to Rosenstein arguing that Mueller’s investigation was “fatally misconceived” to the extent it was premised on Trump firing former FBI Director James Comey or trying to convince Comey to drop the investigation of Michael Flynn, Trump’s first national-security adviser. Barr’s memo was a forceful exposition of the legal argument that the president cannot obstruct justice be exercising certain core powers like hiring or firing staff or directing the course of executive branch investigations. So although Barr’s letter to Congress says that he and Rosenstein found no actions that constituted “obstructive conduct” undertaken with the requisite corrupt intent, we don’t know whether he means that Trump didn’t try to interfere with an investigation, or that even if he did it wasn’t obstruction for a president to do so. Democrats in Congress will want to probe that distinction—as they should.
Mueller’s report was initially confidential under the Department of Justice regulations governing the Special Counsel. In Sunday’s letter, Barr said his goal was to release as much of it as possible consistent with the law. In particular, he noted that the report includes information about matters occurring before the grand jury that are secret as a matter of federal law, and that some other references in the report might reveal the status of ongoing investigations. Barr must abide by his promise to resolve those questions promptly and in favor of as much disclosure as the law permits. It’s impossible to evaluate the results of Mueller’s investigation—and their legal, political, and historical significance—without the details.
The other big reveal in Barr’s letter is that Mueller “determined not to make a traditional prosecutorial judgment” about whether the President has obstructed justice in the course of the two-year investigation of Russian interference in the election. Instead, Mueller laid out the relevant evidence “on both sides” of the issue but did not resolve what the special counsel saw as the “difficult issues” of fact and law concerning “whether the President’s actions and intent could be viewed as obstruction.” Mueller’s report “does not conclude that the President committed a crime, it does not exonerate him.” Mueller punted.
Why would Mueller spend so much time investigating obstruction of justice but not reach a conclusion? We won’t know until we read his report. But Robert Mueller, a career G-Man, is fundamentally legally conservative. That means he has a narrow view of his own role and a healthy respect for the authority of the other branches of government. He may believe that the evaluation is so inherently political that no conclusion he could offer would ever be seen as legitimate, and the matter is better resolved through Congress’s constitutional authority to impeach (or not) the president. Even if Mueller didn’t make an explicit recommendation, we’ll probably be able to infer his conclusions by reviewing how he marshalled the evidence for and against guilt. Prosecutors, as a rule, are not good at neutral renditions of facts.
The attorney general showed no such circumspection. In less than 48 hours, he and Deputy Attorney General Rod Rosenstein—who supervised Mueller for most of his investigation—“concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offence.” Though Barr emphasized that he and Rosenstein had been involved in evaluating the status of the investigation for months, and that they consulted the Office of Legal Counsel and other Department of Justice experts, this conclusion reflects startling and unseemly haste for such a historic matter.
Crucially, we don’t know whether Barr concluded that the president didn’t obstruct justice or whether he couldn’t obstruct justice. Well before his appointment, Barr wrote an unsolicited memo to Rosenstein arguing that Mueller’s investigation was “fatally misconceived” to the extent it was premised on Trump firing former FBI Director James Comey or trying to convince Comey to drop the investigation of Michael Flynn, Trump’s first national-security adviser. Barr’s memo was a forceful exposition of the legal argument that the president cannot obstruct justice be exercising certain core powers like hiring or firing staff or directing the course of executive branch investigations. So although Barr’s letter to Congress says that he and Rosenstein found no actions that constituted “obstructive conduct” undertaken with the requisite corrupt intent, we don’t know whether he means that Trump didn’t try to interfere with an investigation, or that even if he did it wasn’t obstruction for a president to do so. Democrats in Congress will want to probe that distinction—as they should.
Mueller’s report was initially confidential under the Department of Justice regulations governing the Special Counsel. In Sunday’s letter, Barr said his goal was to release as much of it as possible consistent with the law. In particular, he noted that the report includes information about matters occurring before the grand jury that are secret as a matter of federal law, and that some other references in the report might reveal the status of ongoing investigations. Barr must abide by his promise to resolve those questions promptly and in favor of as much disclosure as the law permits. It’s impossible to evaluate the results of Mueller’s investigation—and their legal, political, and historical significance—without the details.
From Neal's piece:
www.nytimes.com/2019/03/24/opinion/barr-mueller-report.html?action=click&module=Opinion&pgtype=Homepage
On Sunday afternoon, soon after Attorney General Bill Barr released a letter outlining the Mueller investigation report, President Trump tweeted “Total EXONERATION!” But there are any number of reasons the president should not be taking a victory lap.
First, obviously, he still faces the New York investigations into campaign finance violations by the Trump team and the various investigations into the Trump organization. And Mr. Barr, in his letter, acknowledges that the Mueller report “does not exonerate” Mr. Trump on the issue of obstruction, even if it does not recommend an indictment.
But the critical part of the letter is that it now creates a whole new mess. After laying out the scope of the investigation and noting that Mr. Mueller’s report does not offer any legal recommendations, Mr. Barr declares that it therefore “leaves it to the attorney general to decide whether the conduct described in the report constitutes a crime.” He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.
Such a conclusion would be momentous in any event. But to do so within 48 hours of receiving the report (which pointedly did not reach that conclusion) should be deeply concerning to every American.
The special counsel regulations were written to provide the public with confidence that justice was done. It is impossible for the public to reach that determination without knowing two things. First, what did the Mueller report conclude, and what was the evidence on obstruction of justice? And second, how could Mr. Barr have reached his conclusion so quickly?
Mr. Barr’s letter raises far more questions than it answers, both on the facts and the law.
His letter says Mr. Mueller set “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.” Yet we don’t know what those “difficult issues” were, because Mr. Barr doesn’t say, or why Mr. Mueller, after deciding not to charge on conspiracy, let Mr. Barr make the decision on obstruction.
On the facts, Mr. Barr says that the government would need to prove that Mr. Trump acted with “corrupt intent” and there were no such actions. But how would Mr. Barr know? Did he even attempt to interview Mr. Trump about his intentions?
What kind of prosecutor would make a decision about someone’s intent without even trying to talk to him? Particularly in light of Mr. Mueller’s pointed statement that his report does not “exonerate” Mr. Trump. Mr. Mueller didn’t have to say anything like that. He did so for a reason. And that reason may well be that there is troubling evidence in the substantial record that he compiled.
Furthermore, we do not know why Mr. Mueller did not try to force an interview with the president. The reason matters greatly. Mr. Mueller could have concluded that interviews of sitting presidents for obstruction matters are better done within the context of a congressional impeachment investigation (perhaps because a sitting president cannot be indicted, the Barr letter says this legal argument didn’t influence Mr. Barr’s conclusion but again is pointedly silent as to Mr. Mueller).
Or Mr. Barr could have concluded that the attorney general, not a special counsel, should carry out such an interview. The fact that Mr. Barr rushed to judgment, within 48 hours, after a 22 month investigation, is deeply worrisome.
First, obviously, he still faces the New York investigations into campaign finance violations by the Trump team and the various investigations into the Trump organization. And Mr. Barr, in his letter, acknowledges that the Mueller report “does not exonerate” Mr. Trump on the issue of obstruction, even if it does not recommend an indictment.
But the critical part of the letter is that it now creates a whole new mess. After laying out the scope of the investigation and noting that Mr. Mueller’s report does not offer any legal recommendations, Mr. Barr declares that it therefore “leaves it to the attorney general to decide whether the conduct described in the report constitutes a crime.” He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.
Such a conclusion would be momentous in any event. But to do so within 48 hours of receiving the report (which pointedly did not reach that conclusion) should be deeply concerning to every American.
The special counsel regulations were written to provide the public with confidence that justice was done. It is impossible for the public to reach that determination without knowing two things. First, what did the Mueller report conclude, and what was the evidence on obstruction of justice? And second, how could Mr. Barr have reached his conclusion so quickly?
Mr. Barr’s letter raises far more questions than it answers, both on the facts and the law.
His letter says Mr. Mueller set “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.” Yet we don’t know what those “difficult issues” were, because Mr. Barr doesn’t say, or why Mr. Mueller, after deciding not to charge on conspiracy, let Mr. Barr make the decision on obstruction.
On the facts, Mr. Barr says that the government would need to prove that Mr. Trump acted with “corrupt intent” and there were no such actions. But how would Mr. Barr know? Did he even attempt to interview Mr. Trump about his intentions?
What kind of prosecutor would make a decision about someone’s intent without even trying to talk to him? Particularly in light of Mr. Mueller’s pointed statement that his report does not “exonerate” Mr. Trump. Mr. Mueller didn’t have to say anything like that. He did so for a reason. And that reason may well be that there is troubling evidence in the substantial record that he compiled.
Furthermore, we do not know why Mr. Mueller did not try to force an interview with the president. The reason matters greatly. Mr. Mueller could have concluded that interviews of sitting presidents for obstruction matters are better done within the context of a congressional impeachment investigation (perhaps because a sitting president cannot be indicted, the Barr letter says this legal argument didn’t influence Mr. Barr’s conclusion but again is pointedly silent as to Mr. Mueller).
Or Mr. Barr could have concluded that the attorney general, not a special counsel, should carry out such an interview. The fact that Mr. Barr rushed to judgment, within 48 hours, after a 22 month investigation, is deeply worrisome.
ETA:
Also good (thread):