Not Quite a Smoking Gun

Breville Pro Smoking Gun.

William Barr got his copy of the Mueller Report on Friday, 22 March 2019, about five weeks after he assumed the attorney generalship of the United States. That Sunday he sent Congress his four-page letter describing his views on what the 448 pages said, which was not as he later explained a "summary" of it, just a statement of its "principal conclusions", including two main failures to draw conclusions: on the subject of Russian active measures in the 2016 election it

did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election

and on the subject of actions by the president, Mueller had

considered whether to evaluate the conduct under Department standards governing prosecution and declination decisions but ultimately determined not to make a traditional prosecutorial judgment.

Neither one of which was exactly true, as, one thinks, he might have found out if he had had time to read the thing. He did, however, with the assistance of Deputy Attorney General Rosenstein, come to his own opinion, 

that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. Our determination 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 on the same Sunday, 24 March, two Justice Department lawyers drafted a memo summarizing the advice they had given Barr in reaching this decision, to which Barr was evidently referring when he told Congress when he gave them the report itself on 18 April, that

he and the Deputy Attorney General reached the conclusion he had announced in the March 24 letter “in consultation with the Office of Legal Counsel and other Department lawyers.”

That's the memo you've been hearing about this week; the one that the Citizens For Responsibility and Ethics in Washington (CREW) immediately demanded to see, in a FOIA request that DOJ denied, and continues to deny under a new administration and new attorney general Merrick Garland, on the grounds that it violates the department's "deliberative process privilege" ("officials will not communicate candidly among themselves if each remark is a potential item of discovery") and that is the document Judge Amy Berman Jackson ordered them on 5 May to unseal, in a decision that DOJ announced yesterday it was appealing.

Berman Jackson ordered the unsealing in some fairly strong language, on the grounds that the advice being offered was not legal advice on a decision Barr had to make (which would be privileged), but strategic advice on how to handle a decision he'd already made, as the extremely suspicious-looking four-page letter to Congress was being drafted:

... before the weekend was over, he sent a letter to congressional leaders purporting to “summarize the principal conclusions” set out in the Report, compressing the approximately 200 highly detailed and painstakingly footnoted pages of Volume I – which discusses the Russian government’s interference in the election and any links or coordination with the Trump campaign – and the almost 200 equally detailed pages of Volume II – which concerns acts taken by then-President Trump in connection with the investigation – into less than four pages. The letter asserted that the Special Counsel “did not draw a conclusion – one way or the other – as to whether the examined conduct constituted obstruction,” and it went on to announce the Attorney General’s own opinion that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense.”

The President then declared himself to have been fully exonerated.

The Attorney General’s characterization of what he’d hardly had time to skim, much less, study closely, prompted an immediate reaction, as politicians and pundits took to their microphones and Twitter feeds to decry what they feared was an attempt to hide the ball.

Indeed. What we're really expecting to see in this document is how the lawyers cooked up an ex post facto case out of the Mueller report for the action Barr intended before he'd even looked at the report, to give Trump the ability to claim he'd been exonerated whether he had been or not.

I was planning to make this about the DOJ appeal, but as it turns out that is now kind of moot, as well as kind of stupid, since Judge Berman Jackson has released of an unredacted version of her order, today, including previously censored chunks from the memo in question, so that we can get a pretty clear idea of what they were hoping to conceal:

why did the Attorney General’s advisors, at his request, create a memorandum that evaluated the prosecutive merit of the facts amassed by the Special Counsel? ... getting a jump on public relations.

Although the Special Counsel recognized the unfairness of levying an accusation against the President without bringing criminal charges, the Report’s failure to take a position on the matters described therein might be read to imply such an accusation if the confidential report were released to the public. Therefore, we recommend that you examine the report to determine whether prosecution would be appropriate . . . .

That is, the advisers were advising Barr to put out the suggestion that, even though he wasn't going to charge the president anyway (because of the OLC position that sitting presidents can't be charged), he didn't think a charge would stick, so that people wouldn't get the impression that Trump was guilty of the crimes he wasn't going to be charged with—contrary, as you know, to what Mueller actually wrote:

[I]f 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. The evidence we obtained about the President’s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

Moreover, this advisement, far from being "predecisional", or offered to Barr in the process of coming to a decision as to what he was going to do, took place simultaneously with the action itself, over the same crazy weekend, as the departmental communications (not redacted in the original order) demonstrate:

The emails show not only that the authors and the recipients of the memorandum are working hand in hand to craft the advice that is supposedly being delivered by OLC, but that the letter to Congress is the priority, and it is getting completed first. At 2:16 pm on Sunday, March 24, the Attorney General’s Chief of Staff advises the others: “We need to go final at 2:25 pm,” and Rod Rosenstein, the Deputy Attorney General, summons everyone to a meeting at 2:17 pm. Attachment 1 at 4. At 2:18 pm, Steven Engel in the OLC replies to this email chain related to the draft letter, and he attaches the latest version of the memo to the Attorney General, saying: “here’s the latest memo, btw, although we presumably don’t need to finalize that as soon.” Id.; see also id. at 6 (finalizing the letter just before 5:00 pm on March 24 and the memorandum just before 9:00 am on March 25).

Yes, the letter-writing team got a not-final draft of the advice memo seven minutes before the letter was supposed to go out, though it took another two and a half hours before the letter was in fact finished.

So basically what the memo is going to do, if it ever comes out, is confirm what you thought from the moment you saw that letter: that Barr didn't read the Mueller report, or even particularly look at it much beyond the last few pages; that he knew approximately what he was going to do before it even arrived and got his staff, led by Rosenstein, to whip out both sides of it, the letter and the advice he was supposedly following in the letter, in three crazed days, while keeping the Mueller report itself under wraps for a month while he testified to Congress and otherwise poisoned the well of public opinion, successfully enough that Schiff and Nadler and the others decided they wouldn't be able to impeach. And Barr lied to Congress, and Trump is most definitely guilty of obstruction.

But no proper smoking gun, once again.

I guess I'd still like to know why the Garland Justice Department wanted to suppress it. My bet's on plain old-fashioned DOJ martinet bureaucracy, the same thing that hobbled Comey and McCabe and Mueller, and Rosenstein too, who, slimy though he is, knows he's done wrong: they really believe a threat to the deliberative process privilege is worse than a criminal president putting himself beyond the reach of the law. I suppose Garland belongs to that world too. And that, kids, is why we can't have justice, because it makes Justice nervous.