All the ways the attorney general is spinning the Mueller report to protect Trump.
“The Russian government.” The letter quotes a sentence from Mueller’s report. In that sentence, Mueller says his investigation didn’t prove that members of the Trump campaign “conspired or coordinated with the Russian government in its election interference activities.” The sentence specifies Russia’s government. It says nothing about coordination with other Russians. Trump’s campaign chairman, Paul Manafort, gave campaign polling data to Konstantin Kilimnik, a Russian associate who has been linked to Russian intelligence. Manafort, Donald Trump Jr., and Jared Kushner met secretly in Trump Tower with Natalia Veselnitskaya, a Kremlin-connected lawyer. But neither Kilimnik nor Veselnitskaya is part of the Russian government. They seem to be excluded from Barr’s analysis.
“In its election interference activities.” This phrase is included in the same excerpt. It reflects the structure of the investigation. Mueller started with a counterintelligence probe of two specific Russian government operations: the production of online propaganda to influence the 2016 U.S. election, and the hacking of the Democratic National Committee and Hillary Clinton’s campaign. These are the two operations Mueller targeted in his indictments of Russians last year. If Barr’s letter is accurate, Mueller seems to have decided to confine his examination of American complicity to those two operations. In fact, Barr’s letter specifically cites those operations as the contexts in which Mueller didn’t find conspiracy or coordination. Other contacts between Trump associates and Russians, such as Trump’s Moscow tower project and Michael Flynn’s secret talks about easing sanctions, have been set aside.
“Agreement—tacit or express.” A footnote in Barr’s letter says the special counsel defined coordination as “agreement—tacit or express—between the Trump Campaign and the Russian government on election interference.” The letter doesn’t clarify whether this definition originally came from Mueller or from the Justice Department. This, too, limits the range of prosecutable collusion. We know, for example, that in June 2016, Donald Trump Jr. was told in an email that “the Crown prosecutor of Russia” had “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary … and would be very useful to your father.” The email said the offer was “part of Russia and its government’s support for Mr. Trump.” Trump Jr. wrote back: “If it’s what you say I love it.” Apparently, by the standards asserted in the letter, this doesn’t count as even “tacit agreement … on election interference.”
“Absence of such evidence.” One reason to be suspicious of Barr’s conclusions is that in the course of the letter, he tweaks Mueller’s opinion to look more like his own. Mueller’s report, as excerpted by Barr, says “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” Barr quotes that line and then, in the same sentence, concludes that “the absence of such evidence bears upon the President’s intent with respect to obstruction.” But the excerpt from Mueller’s report doesn’t refer to an absence of evidence. It refers to a presence of evidence, and it says this evidence isn’t enough to prove a crime. Throughout the investigation, this has been a standard Republican maneuver: misrepresenting an absence of proof as an absence of evidence. Barr’s use of this maneuver in his letter is a red flag that he’s writing partisan spin.
“Underlying crime.” When Barr concludes that Trump shouldn’t be charged with obstruction, he bases this on his prior decision not to charge Trump with conspiracy. Since “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” Barr argues, there was no “pending or contemplated proceeding” that Trump’s behavior could have obstructed. This argument has many problems, but let’s start with the simplest one: It bypasses examination of Trump’s obstructive acts. Barr simply defines whatever Trump did as nonobstructive, as long as an underlying conspiracy with Russia isn’t proved. If Trump asked then–FBI Director James Comey to drop his investigation of Flynn, that’s fine.
“Related to Russian election interference.” Barr’s requirement of “an underlying crime related to Russian election interference,” as a predicate for prosecuting obstruction of justice, exempts Trump from obstruction charges even if Trump is shown to have committed crimes—as long as those crimes aren’t specifically connected to the Russian hacking and propaganda campaigns. Flynn, for example, conferred secretly with Russia’s ambassador about lifting sanctions, but not until weeks after the 2016 election. Even if this were proved to be a criminal conspiracy on Flynn’s part, Barr’s legal standard would insulate Trump from prosecution for anything he did to thwart the FBI’s investigation of Flynn.
“That the President was involved in.” In narrowing the permissible premises for an obstruction charge, Barr doesn’t just specify that the crime in question has to be related to the two Russian interference operations. He specifies that the crime has to involve Trump himself. This immunizes Trump against prosecution for anything he did to obstruct investigations, not only into Flynn, but also into the established crimes of Manafort and the alleged crimes of Roger Stone.
“Pending or contemplated proceeding.” Barr says none of Trump’s acts against Comey or other investigators can be prosecuted as obstruction of justice, since they lack “a nexus to a pending or contemplated proceeding.” For example (this is my example, not Barr’s), when Trump fired Comey, Trump wasn’t facing trial and wasn’t officially a target of the Russia investigation. By this standard, the president can bury an investigation as long as he does so before it gets to him. You can’t walk out on Fifth Avenue and shoot somebody, because that’s assault with a deadly weapon. But if somebody gets shot on Fifth Avenue, and your friend lies to police about it, you can order the cops to drop their investigation of your friend.
“Each of which … beyond a reasonable doubt.” Barr says Mueller found “no actions that, in our judgment,” can simultaneously meet three tests: (1) “obstructive conduct,” (2) “corrupt intent,” and (3) “nexus to a pending or contemplated proceeding.” The attorney general says prosecutors would have to prove “each” of these elements of the case “beyond a reasonable doubt.” Even if some of Trump’s acts are both obstructive and corrupt, Barr won’t bring charges unless the “nexus to a … proceeding” can also be proved by the highest legal standard. In a case like this one, that’s an almost impossible threshold for prosecution.
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