William Barr publicly auditioned for the job of attorney general by telling Donald Trump what he wanted to hear. On Sunday, when Barr released his summary of special counsel Robert Mueller’s investigation, the attorney general proved that Trump had put his faith in the right man.
Recall that Barr came to Trump’s defense in 2017 when Mueller seemed interested in a controversial presidential action: the firing of former FBI Director James Comey. First, Barr wrote an op-ed defending Trump’s decision on the grounds that Comey’s “controversial actions” concerning Hillary Clinton’s email controversy gave “the impression that the FBI was enmeshed in politics” and that the president was right to “make a fresh start.” Trump quickly obliterated this pretext when he admitted that he fired Comey in part because of the FBI’s inquiry into the Trump campaign’s ties to Russia.
Then, in 2018, Barr returned with a new defense of the president. Still a private citizen at the time, Barr circulated a memo speculating that Mueller was focusing on two actions that might amount to obstruction of justice: Trump’s request that Comey “see your way clear” to “letting [Michael] Flynn go,” and his firing of Comey. As president, Barr wrote, Trump has constitutional authority over executive agencies’ prosecutorial discretion as well as subordinate personnel. In other words, the chief executive is lawfully empowered to interfere with investigations and fire inferiors—even if he does so for a flagrantly corrupt reason. Prosecuting him for doing so, Barr insisted, would “impermissibly burde[n] the exercise of core discretionary powers within the executive branch.” Or, put simply: When the president does it, that means it is not illegal.
Fast forward to Sunday, when Barr released his summary of Mueller’s report after absorbing it for less than 48 hours. Barr outlined one key finding unambiguously: The Trump campaign, he wrote, did not coordinate with the Russian government to influence the 2016 election. That conclusion will come as a great relief to the president and his supporters, if Mueller’s report is as clear-cut as Barr indicates. But the attorney general’s summary includes a second finding that is confusing and equivocal. Mueller, Barr wrote, left “unresolved” the question of whether Trump obstructed justice. He instead laid out “evidence of both sides” and allowed Barr, along with Deputy Attorney General Rod Rosenstein, to use those findings to determine whether the president committed obstruction. On the basis of this evidence and analysis—which we cannot yet evaluate—Barr and Rosenstein decided that Trump did not commit such an offense.
This portion of the summary will remain a puzzle until Mueller’s report is released to the public. But Barr provided a clue to his reasoning, by suggesting that he did not see evidence Trump hampered the Russia probe with “corrupt intent.” As former Acting Solicitor General Neal Katyal has noted, it is hard to understand how Barr, or Mueller, or anyone, could gauge Trump’s intent, because the president has not been interviewed about his intentions. Why not? We know at least one person vigorously opposed to compelling Trump to submit to an interview: Bill Barr, whose 2018 memo declared that Mueller could not legally do so.
Here, then, is the current state of play on the lingering possibility that Trump obstructed justice. Mueller laid out “evidence” that he may have, but allowed the attorney general to draw his own conclusions. He noted that his report “does not conclude that the President committed a crime,” but “also does not exonerate him.” Barr received this report (whose length remains unknown) on Friday afternoon. Less than 48 hours later, he informed Congress that he and Rosenstein had decided, in fact, that the evidence was “not sufficient to establish” that Trump committed a criminal offense. Which means that instead of attempting to gather more evidence—by, say, interrogating Trump about his intent—Barr decided he’d seen enough to wrap the Justice Department’s investigation and announce “no obstruction.”
These are precisely the actions you would expect of the loyal Republican who wrote the 2018 memo. And they are unnerving. As Ken White wrote in the Atlantic, “we don’t know whether Barr concluded that the president didn’t obstruct justice or whether he couldn’t obstruct justice.” But Barr’s lightning-fast judgment certainly points toward the latter possibility. We know that the report does not “exonerate” Trump of obstruction, and that Mueller himself felt it appropriate to leave certain “legal conclusions” to the attorney general. Mueller’s considerable deference to Barr could allow the attorney general to take a step the special counsel never did—interview the president. The fact that Barr chose to issue his judgment without doing so raises the strong possibility that he felt obstruction was simply not worth pursuing because it is constitutionally untenable, an argument that Barr has already endorsed.
There is a second problem with the obstruction analysis in Barr’s summary: Rosenstein’s participation. Remember that Rosenstein wrote the memo that justified Trump’s termination of Comey, on grounds that Trump later revealed to be pretext. The New York Times has reported that Rosenstein believed the “White House used him to rationalize the firing” and deeply regretted his role in the incident. Former Deputy Director Andrew McCabe has written that Rosenstein wrote the memo under duress under orders from Trump. At a minimum, Rosenstein has a massive conflict of interest with regard to these obstruction allegations. And yet he consulted with Barr in deciding that Trump did not engage in “obstructive conduct.” It is bewildering that Barr invited Rosenstein to help him decide whether conduct that Rosenstein helped to justify legally might have been illegal.
For Trump’s defenders, Barr’s summary is a godsend, a vindication of the president’s assertion that he committed “no collusion.” For staunch supporters of the “unitary executive,” it is a satisfying affirmation of Trump’s sweeping powers to manipulate his subordinates to protect his own skin. For the rest of us, the summary is a riddle, opaque in its reasoning and premature in its conclusions. Barr has provided Trump with a partisan victory, ably discharging the duties he was likely chosen to perform. But he has also provided one more reason why the public must see the full Mueller report as soon as possible.
