When attorney general William Barr was first appointed to his position early this year, he seemed a legal figure of a piece with special counsel Robert Mueller: both public-minded company men, longtime fixtures of the Justice Department, and, to top it off, good personal friends. Now, as the two-year saga of the Mueller investigation draws to a close, it looks like the final act will be dominated by growing hostility between the two.
The first rumblings of discord came late last month, days after Barr released a letter which he said summarized the “principal conclusions” of the Mueller report. Reports quickly surfaced that members of Mueller’s team had been frustrated by the letter, which they said papered over alarming evidence they had gathered about potential acts of obstruction of justice committed by President Trump.
Then, Tuesday evening, a bombshell: Mueller himself had written Barr a letter lodging similar complaints about Barr’s characterization of the report, which “did not fully capture the context, nature, and substance” of his work and helped inculcate “public confusion about critical aspects of the results of our investigation.”
Mere hours later, on Wednesday morning, Barr appeared on Capitol Hill to testify before the Senate Judiciary Committee about his handling of the Mueller report. There, he dismissed Mueller’s letter as “a bit snitty… probably written by one of his staff people,” and took some veiled—but still notable—shots at Mueller’s handling of his investigation, particularly his decision to refrain from making a recommendation about whether President Trump should be charged with obstruction of justice.
“The report says that they could not be sure that they could clearly say that [Trump] did not violate the law,” Barr said, referring to the following passage from the Mueller report: “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. Accordingly, while this report does not conclude that the president committed a crime, it also does not exonerate him.”
“As you know, that’s not the standard we use in the criminal justice system,” Barr said. “It’s presumed that someone is innocent, and the government has to prove that they clearly violated the law. I found that whole passage very bizarre.”
In objecting to Mueller’s abstention, Barr echoed complaints that some conservative legal writers have made in the aftermath of the report. In the New York Post, Andrew C. McCarthy called Mueller’s non-decision “unbecoming behavior for a prosecutor and an outrageous shifting of the burden of proof: The constitutional right of every American to force the government to prove a crime has been committed, rather than to have to prove his or her own innocence.”
But what such writers—and now add Barr himself to the list—have chosen to ignore is why Mueller made such a decision: Not because he suddenly stopped believing in the presumption of innocence, but because, he wrote, he seemed to have no other choice.
Not a little evidence suggests this is the case. First, there is of course the bald fact, laid out painstakingly in the Mueller report, that Trump did in fact take plenty of actions that appear, at least to the layman’s eye, to have been for the express purpose of hindering Mueller’s investigation. Second, there is Mueller’s free admission within the report that he considered himself bound by Justice Department policy that a sitting president cannot be indicted. In the report, Mueller took pains to detail just how seriously his team took that policy, even considering the legal ramifications of using a sealed indictment not to be made public until after the president left office (a theory ultimately discarded because, Mueller wrote, it would be next to impossible to ensure the indictment would not be leaked).
In other words, Mueller argued that it didn’t matter how strong the evidence for obstruction might have been: There was no possible circumstance in which he would have recommended charges. “A prosecutor’s judgment that crimes were committed, but that no charges will be brought,” he wrote, affords no such adversarial opportunity for public name-clearing before an impartial adjudicator.”
The responsibility for assessing the relevant evidence thus fell to Congress:
We concluded that in the rare case in which a criminal investigation of the president’s conduct is justified, inquiries to determine whether the President acted for a corrupt motive should not impermissibly chill his performance of his constitutionally assigned duties. The conclusion that Congress may apply obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law.
Taken together, the evidence strongly indicates that Mueller took his unusual step of refraining from recommendation because he was caught strongly on the horns of a dilemma. Deeply troubled by the president’s conduct, he remained unable actively to assert that he believed the president had committed crimes because of the constraints placed on him by department policy: “I can’t call him guilty, but I sure can’t call him innocent.”
Against this evidence stands alone the word of Barr. From his initial letter to Congress on March 24 detailing the “principal conclusions” of the Mueller report, Barr was unequivocal that the determination not to charge Trump with obstruction “was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”
And so here is where the question of Barr’s credibility, much maligned in recent weeks, becomes suddenly crucial. Some concerns about Barr, like the worry that he would deliberately redact damaging parts of the report to protect the president, have proven misplaced: Barr testified Wednesday that, although he set the criteria for redacting the report, he did not even play an active role in carrying that redaction out.
But the growing rift between Barr and Mueller makes Barr’s increasing lack of credibility very unfortunate indeed. The question of why Mueller determined not to make a prosecutorial judgment is critical. If, as Barr insists, it was simply because the evidence did not support a likely obstruction conviction, then that would be the end of the matter, and McCarthy et al. are right to be incensed. But if, as the other available evidence seems to indicate, Mueller simply believed it was Congress’s role, not his, to move forward with the case he had assembled, then the matter is far from over, and Congress has a duty to at least consider whether they ought to begin impeachment proceedings.
Which is it? Two men know. One is a spin doctor, and one remains silent. And perhaps, the spin doctor himself is going silent. He announced Wednesday that he would not appear as scheduled before the House Judiciary Committee. So it may well be that these are his final words on the subject:
“The job of the Justice Department is now over,” Barr said Wednesday. “That determines whether or not there’s a crime. The report is now in the hands of the American people. Everyone can decide for themselves. There’s an election in 18 months. That’s a very democratic process. We’re out of it.”