William Barr, the Mueller Report, and the Question of Obstruction by Trump
Despite all the secrecy that has shrouded Robert Mueller’s special-counsel investigation during the past two years, the two primary questions it set out to answer have long been clear. The first was whether Donald Trump’s Presidential campaign had colluded with the Russian government during the 2016 election. The second was whether Trump himself later obstructed justice by, to take just one example, asking his F.B.I. director to ease off investigating his former national-security adviser’s conversations with the Russian Ambassador. According to Attorney General William Barr, who released his summary of Mueller’s findings on Sunday, Mueller found no evidence of collusion. On the question of obstruction, though, Mueller ultimately decided that it wasn’t his call to make. In a letter to congressional leaders, Barr wrote that Mueller, in the report that the special counsel turned in on Friday, “did not draw a conclusion—one way or the other—as to whether the examined conduct constituted obstruction.” Mueller’s decision, Barr went on, “leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.”
Barr left little room for further suspense. “Deputy Attorney General Rod Rosenstein and I,” he wrote, invoking the name of the Justice Department official who, after Mueller, is most identified with the special-counsel probe, “have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.” These sentences prompt a number of questions. Why and when did Mueller decide that he wasn’t in a position to resolve the obstruction issue? Which actions by Trump did he investigate? (Barr wrote only that “most” had been reported in the media—but not all.) What did Trump and his attorneys tell Mueller about these actions, in response to the special counsel’s written questions to the President? And what did Mueller make of those answers?
And then there is the question of Barr himself. Mueller wasn’t leaving the obstruction issue to any Attorney General. Barr took over the Justice Department following the depressing tenure of Jeff Sessions and the ludicrous “acting” tenure of Matt Whitaker. Barr was viewed by many as a more ordinary choice for Attorney General than the previous two—he’d already been Attorney General, for one thing, during the George H. W. Bush Administration. But he also had something to recommend him to Trump: this past summer, Barr sent an unsolicited memo to the Justice Department making a case against the special counsel bringing obstruction charges. “Mueller’s obstruction theory is fatally misconceived,” Barr wrote. “As I understand it, his theory is premised on a novel and legally insupportable reading of the law.” He wrote this even without having any actual inside knowledge of what Mueller was doing. When Trump later nominated Barr, that memo prompted questions about whether Barr would have to recuse himself from the Russia investigation. Surely, those questions will now be asked again, as Congress and the public wrestle with Barr’s decision and the release or non-release of Mueller’s full findings.