Barr v. Mueller: Two Very Different Stories Of What The Special Counsel Found

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Wednesday’s press conference brought the latest instance of Robert Mueller’s words countering Attorney General Bill Barr’s description of the fruits of the special counsel’s two-year investigation.

In congressional testimony, public letters, and press conferences over the past months, Mueller and Barr have offered strikingly different characterizations of the 448-page report summarizing the Russia probe.

The attorney general has rallied to President Trump’s side, absolving him of obstructing justice and even repeating Trump’s favorite line about Mueller finding “no collusion” between the 2016 campaign and Russia. Mueller has offered a far more nuanced picture. The special counsel made clear that Trump associates were, in fact, open to assistance from Russian operatives, and that his investigation did not clear Trump on obstruction.

In a Wednesday press conference — Mueller’s first and only public comments since the probe began — the special counsel again emphasized that Trump was not exonerated. And rather than declaring the case closed, as Barr did, Mueller implied that it’s now up to Congress to grapple with what he found.

Below, we compare the record of what Barr and Mueller have said about the investigation.

Who should make the obstruction decision?

In Barr’s account, Mueller’s decision not to make a traditional prosecutorial decision as to whether Trump obstructed justice left that determination up to the attorney general. Barr has maintained that the special counsel never suggested that Congress should be allowed to weigh in.

“I didn’t talk to him directly about the fact that we were making the decision, but I am told that his reaction to that was that it was my prerogative as attorney general to make that decision,” Barr said in an April 18 press conference just before the redacted report was released.

Asked specifically what Congress’ role in the matter was, Barr replied: “Special counsel Mueller did not indicate that his purpose was to leave the decision to Congress. I hope that was not his view, since we don’t convene grand juries and conduct criminal investigations for that purpose.”

But in both the report and his Wednesday press conference, Mueller emphasized that Congress is the body best equipped to exercise this authority.

“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,” Mueller wrote in his report.

“We concluded that Congress has authority to prohibit a President’s corrupt use of his authority in order to protect the integrity of the administration of justice,” he added.

In Wednesday’s presser, Mueller reiterated that longstanding Justice Department policy holds “that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.”

Why investigate Trump if he can’t be charged?

During his May 1 testimony before the Senate Judiciary Committee, Barr questioned why Mueller decided to press on with his obstruction inquiry even after determining that he’d adhere to Justice Department policy prohibiting the indictment of a sitting president.

“The other thing that was confusing to me is that the investigation carried on for a while as additional episodes were looked into, episodes involving the President,” Barr said. “And so my question is or was, why were those investigated if, at the end of the day, you weren’t going to reach a decision on them?”

Barr later circled back to the point: “I think that if he felt that he shouldn’t go down the path of making a traditional prosecutive decision, then he shouldn’t have investigated. That was the time to pull up.”

Mueller made his perspective clear on Wednesday.

His team was adhering to Justice Department policy, and that policy, Mueller said, “explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents are available. Among other things, that evidence could be used if there were co-conspirators who could now be charged.”

The obstruction inquiries were “of paramount importance,” Mueller said.

“It was critical for us to obtain full and accurate information from every person we questioned. When a subject of an investigation obstructs the investigation or lies to investigators, it strikes at the core of the government’s effort to find the truth and hold wrongdoers accountable,” he added on Wednesday.

How big of a role did DOJ regulations’ play in Mueller’s obstruction decision?

Barr has strenuously argued that Mueller hadn’t found evidence that Trump committed a crime by obstructing justice. The special counsel was not, Barr insisted, simply following the Office of Legal Counsel’s opinion disallowing the indictment of a president.

Barr told reporters in his April 18 public remarks that Mueller was “not saying that but for the OLC opinion, he would have found a crime.”

“He made it clear that he had not made the determination that there was a crime,” Barr said.

The attorney general made the same point in front of the Senate Judiciary Committee, claiming that Mueller told him three times “that he emphatically was not saying that but for [the OLC opinion], he would have found obstruction.”

But Mueller took pains to explain how much he leaned on the OLC opinion in formulating his approach and final conclusions on obstruction. The report itself makes that abundantly clear.

In his Wednesday presser, Mueller reiterated the point: “The Special Counsel’s Office is part of the Department of Justice and, by regulation, it is bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.”

Pointedly, Mueller added that his team would have cleared Trump if they were able to.

“If we had confidence that the President clearly did not commit a crime, we would have said that,” he said. “We did not, however, make a determination as to whether the President did commit a crime.”

Was there no evidence or insufficient evidence of collusion?

In his “no collusion” April 18 press conference, Barr said that Russian operatives “did not have the cooperation of President Trump or the Trump campaign.” Mueller’s report, Barr said, “did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government.”

Mueller’s report actually notes that “the campaign expected it would benefit electorally from information stolen and released through Russian efforts.”

On Wednesday, Mueller said that his team concluded “that there was insufficient evidence to charge a broader conspiracy” — rather than no evidence at all.

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