‘This is the end of my presidency. I’m fucked.' - A Yellow Wall Nightmare

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#Resist

[Athos_131]

The Trump Campaign Conspired With the Russians. Mueller Proved It.

In his first letter after receiving the Mueller report, Attorney General William Barr accurately quoted it as saying that “the investigation did not establish” that the Trump campaign “conspired or coordinated with the Russian government in its election interference activities.”

But the opposite is also true: The Mueller report does establish that, in fact, members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.

How is this possible? It’s the difference between the report’s criminal prosecution standard of proof “beyond a reasonable doubt” and a lower standard — the preponderance standard of “more likely than not” — relevant for counterintelligence and general parlance about facts, and closer to the proper standard for impeachment.

There is confusion about the Mueller report’s fact-finding because he used the wrong coordination standard, obstruction probably obscured the evidence of crimes, and the summary was unclear about evidentiary standards. The report’s very high standard for legal conclusions for criminal charges was explicitly proof “beyond a reasonable doubt.” So the report did not establish crimes beyond a reasonable doubt. But it did show a preponderance of conspiracy and coordination.

The Mueller report is best understood as two reports, and not just in its organization of one volume on Russia and one on obstruction. Each volume is one report on facts, and another on applying criminal law to those facts. When the report explains its prosecution decisions and interprets the legal questions of conspiracy and coordination, it repeatedly clarifies that its standard is “whether admissible evidence would probably be sufficient to obtain and sustain a conviction.”

The “prosecution and declination decisions” part of the report uses proof “beyond a reasonable doubt” 10 times, particularly with respect to declining indictments for Russian contacts crimes for Paul Manafort and Donald Trump Jr.

The report is also a fact-finding investigation. In its introductory statement on evidence, it explains, “when substantial, credible evidence enabled the Office to reach a conclusion with confidence, the report states that the investigation established that certain actions or events occurred.” This evidentiary standard seems similar to the “preponderance of the evidence,” the more-likely-than-not standard in civil cases and arguably for an impeachment.

By the preponderance of evidence standard, the report contains ample evidence to establish conspiracy and coordination with the Russian government, sometimes through intermediaries, other times through a Russian spy.

Contrast the Mueller report with the Starr report on President Clinton, which framed itself as an impeachment referral, not a prosecution decision, and thus avoided having to reach the more daunting standard of proof beyond a reasonable doubt. It applied a lower standard of “substantial and credible information” and titled each of its 11 grounds of impeachment in these terms, even when they invoked (or evoked) the criminal conduct of “lying under oath” and “obstruction of justice.”

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The Mueller report, holding itself to the higher standard, concluded that it did not find proof beyond a reasonable doubt of criminal conspiracy with Russia. It also offered an explanation: Lies by individuals associated with the Trump campaign “materially impaired the investigation of Russian election interference.” Witnesses deleted emails and used applications with encryption or deletion functions, which also thwarted fact-finding. Part II of the report on obstruction explains why Part I may have fallen short of such a high burden.

Mr. Barr had the analysis backward in his summary letter. The failure to prove an underlying crime does not mean there was no obstruction. The obstruction meant that it became impossible to know whether there was a conspiracy beyond a reasonable doubt — and it impeded the Russian investigation. Mr. Barr then used that doubt to question whether there was the corrupt intent required by obstruction statutes. To the contrary, the preponderance of conspiracy evidence confirms the corrupt intent.

The report’s core question of whether the Trump campaign “conspired” or “coordinated” with the Russian government is a difficult legal question for any prosecutor. Criminal campaign finance charges — as opposed to civil — require proof that “a violation must have been committed knowingly and willfully,” that the defendant knew he was breaking the law, which is notoriously hard to prove. The “reasonable doubt” problem rightly prevents indictments here, but a preponderance standard is sufficient for an interpretation for public debate based on more-likely-than-not facts.

Even without knowing what is redacted, the report offers “substantial and credible information” of the Trump campaign conspiring or coordinating with the Russian government. Under federal criminal law, “conspiracy” does not require direct proof or explicit words of agreement. It can be proven by action and circumstantial evidence from which the agreement may be inferred. And on campaign “coordination,” the Mueller report made a significant omission or oversight on this question when it stated that “‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express.”

As the election law expert Paul Seamus Ryan noted, Congress in its 2002 campaign finance law rejected that view: Federal law “shall not require agreement or formal collaboration to establish coordination.” The federal regulations followed this command: “Coordinated means made in cooperation, consultation or concert with, or at the request or suggestion of, a candidate,” with no need to show any kind of agreement. Expenditures for coordinated communications are considered in-kind contributions, and foreign contributions — public or private — are illegal. In fact, the Federal Election Commission is reviewing a complaint along these lines.

The report states that Rick Gates, a campaign deputy, suspected that Mr. Manafort’s Russian associate, Konstantin Kilimnik, was a “spy,” a view that he shared with Mr. Manafort (and others). For months, Mr. Manafort informed Mr. Kilimnik about the campaign through internal polling data, even pointing out that Wisconsin, Pennsylvania, Michigan and Minnesota were target states. The Mueller report did not conclude their motives were criminal beyond a reasonable doubt, but by a preponderance in context, the motives were clearly campaign related and likely a coordination with Russia.

Despite being heavily redacted, the report seems to add context to Roger Stone's indictment, implicitly suggesting that Mr. Trump may have directed officials to contact Roger Stone about WikiLeaks, and may have been in contact with Mr. Stone about WikiLeaks. It may not be proven beyond a reasonable doubt that they knew WikiLeaks was an extension of Russian hacking and a Russian campaign, but it is more likely than not a kind of indirect coordination with a foreign government prohibited by law. And Donald Trump Jr.’s continuing contacts with WikiLeaks in September and October 2016, long after the Trump Tower meeting and the July events made its connection to a Russian campaign clear, also were likely a coordination, even if not knowingly proven beyond a reasonable doubt.

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This conduct by President Trump, his son and his campaign manager and deputy campaign manager are probably civil violations of coordination for enforcement by the F.E.C. Presidents should not be impeached for civil election violations, but one should still be able to conclude that Mr. Mueller established coordination with the Russian government as a factual matter. And it may have been so egregious that it was a “high misdemeanor,” and the obstruction was not faithful execution of the law, especially in light of new historical evidence of its meaning.

High crimes and misdemeanors are not limited to felonies. One does not have to conclude that Mr. Trump committed a felony to vote for impeachment. The key points are that the report should not be interpreted as disproving the core Russian allegations. The opposite appears true, even with the redactions: It shows illegal coordination and conspiracy by a preponderance of the evidence. And this evidence is relevant for further subpoenas, for an impeachment inquiry based on the Russian campaign and for proving obstruction with corrupt intent beyond a reasonable doubt.

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Barr to testify before House panel next week on Mueller report

Attorney General William Barr is scheduled to testify before the House Judiciary Committee next Thursday on special counsel Robert Mueller’s investigation, the panel announced Thursday.

Barr’s appearance, which is public, will offer lawmakers on the Democratic-led panel to grill him on his handling of Mueller’s final report, as well as the special counsel’s findings on Russian interference and potential obstruction of justice by President Trump.

The attorney general's House testimony, which had been expected, will come one day after he appears before the GOP-chaired Senate Judiciary Committee to answer questions on the same topic.

Barr released a redacted version of Mueller’s sprawling 448-page report last Thursday, roughly three weeks after summarizing the special counsel’s principal conclusions in a four-page letter to Congress. Democrats have relentlessly criticized Barr for painting what they see as a biased portrait of Mueller’s findings.

They have demanded he provide Mueller’s full report and underlying evidence to Congress. House Judiciary Chairman Jerrold Nadler (D-N.Y.) issued a subpoenaed for those documents on Friday, demanding the Justice Department comply by May 1 — one day before his scheduled testimony.

Mueller did not establish that members of Trump’s campaign conspired with the Russian government during the 2016 election and the special counsel also did not come to a conclusion on potential obstruction of justice. Instead, his report analyzes nearly a dozen instances of possible obstruction by Trump and explicitly states that it does not “exonerate” the president.

Barr said in his letter on March 24 that Mueller did not make a decision on obstruction but that he and Attorney General Rod Rosenstein judged the evidence to be insufficient to accuse the president of an obstruction-of-justice offense.

The attorney general defended Trump in remarks at the Justice Department before releasing the Mueller report last week, saying the president faced an “unprecedented situation” and was “fully” cooperative with Mueller’s investigation.

House Democrats have also sought testimony from others as they seek to probe the details of the special counsel’s report, including Mueller himself and former White House counsel Don McGahn. The White House has sought to block McGahn's testimony.

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Another Look at Impeachment, After the Mueller Report

Among the many oddities in the second episode of the new (and final) season of “Game of Thrones,” none was odder than the disproportion of time spent combating a desperate existential threat versus time spent arguing over the demands of dynastic primacy. After spending approximately thirty seconds on an actual plan to defeat the Night King and his icy undead army (and a terrible plan it was: Bran, you hang out around the old tree and try to catch the king in some kind of mind-meld, and we’ll have the P.T.S.D. victim Theon Greyjoy mind you as you do), far more time was spent on whether a single, and single-handed, knight, Jaime Lannister, might be an acceptable ally to the Stark-Targaryen clans. Accused by Daenerys of having been the kingslayer of her father, and therefore the guy against whom she had sworn vengeance, Lannister gave a strange response. One expected him to say, “Look, your dad was called the Mad King for a reason. He burned people alive and was a threat to existence and decency, no matter what his last name, or what house he belonged to. One thing I’ll never feel ashamed about is helping to expel that lunatic.” Instead, he spoke the language of dynastic squabbling—insisting that he had acted only on behalf of his house and his family—and (in a horrible bit of anachronistic dialogue) got the imposing Brienne of Tarth to say that she would “vouch” for him.

The eloquent relevance of this scene to our current real-world predicament is obvious: too much of the discussion of what to do about an unhinged monarch turns on a modern version of dynastic squabbles—on party politics, on who will do well or badly, on how it will play out for Democrats in the 2020 election, on what it will do to the Republican base, and so on. This squabbling seems, in light of the release of the special counsel Robert Mueller’s report, irrelevant and even kind of frivolous. What the report reveals is what we sensed but could not entirely know: that Donald Trump has contempt not just for the rule of law but for the idea of law. He is a man who rose to power knowing only loyalty and subservience as acceptable institutional attitudes; a man who, according to the report, asked the White House counsel to “do crazy shit” and then asked him to lie about it; a man who repeatedly tried to obstruct not just an investigation into what he or his campaign might have done but the whole idea of an investigation into Russian interference in the 2016 election. Those who predicted that Trump was not just another right-wing politician but an opponent of liberal democracy grow chill watching him assert the position—one that was not long ago as unacceptable to Americans as the idea of commending a foreign autocrat’s attempts to subvert our elections—that the Department of Justice should now pursue his political opponents for nonexistent crimes.

That the scale of the danger Trump poses is becoming clearer to more and more people is due to the paradoxical truth that, despite Trump’s endless claims to the contrary, the Mueller report is the least witch-hunt-like witch hunt in the history of witch hunts. Painfully, dutifully, at times in ways almost unduly dainty, the report works its way through the intricacies of its charge, of Department of Justice standards and practices, of what it can fairly conclude, and of what can’t be legitimately pursued. It does so with a sober judiciousness that would be wonderful to read if one were not a little haunted by the fact that not all special prosecutors or independent counsels have previously shown so much delicacy of mind. One recalls that hit of yesteryear, the Starr Report, written, as seemed evident at the time and still more so now, with the sole political purpose of humiliating President Bill Clinton into resigning, even though its own initial charge—to investigate the Whitewater land deal—left it with insufficient evidence to indict.

The finding of the Mueller report, ably occluded by Attorney General William Barr, isn’t that there was no collusion and no obstruction—it’s that there isn’t enough evidence to rise to the legal level of conspiracy, and that obstruction was not a charge that the office was permitted to pursue, in any case, because Trump is a sitting President. And then that—a rather convoluted piece of reasoning—the accusation cannot be unambiguously stated even if it is true, since it is also against the rules to accuse of a crime someone who can’t defend himself in court. The actual point of view of the authors, though, is made clear in their repeated, and rather ornate, return to an otherwise bafflingly opaque formula: if we could conclude that the President was exonerated of the charge of obstruction we would say so, but we can’t. In cash-value, or real-world, terms, they are saying that they can’t properly say that they found obstruction, but they did find a lot of evidence and are passing it along to those who might be allowed to act on it. It’s a heavy hint in the form of a labyrinthine legal argument.

It may be that, in retrospect, the Mueller investigation will be seen to have been unduly cautious. The failure to subpoena Jared Kushner and Donald Trump, Jr., is puzzling. So, too, is the larger failure to compel the President to be interviewed in person, given the almost aggressive absence of responsiveness in his written answers. This seems particularly evident considering that the independent counsel Kenneth Starr’s team had no compunctions about subpoenaing Bill Clinton to testify, despite the more trivial nature of its initial charge. (They withdrew it after Clinton agreed to testify.)

But, on the whole, and taken on its own terms, the Mueller report is a powerful and positive document, because it is written testimony to the liberal faith in the power of rules and systems to bring order and justice. Mueller and his team were trying on every page of the report and in every instance to follow the rules, even if the rules they were following forced them into contorted prose and easily misrepresented positions. The rules are worth following, the underlying premise of the report insists, because only in accepting the rules can we ensure justice. This is why the language of “norms” and their violation is misapplied to Trump and his conduct. What is at stake here are not “norms,” in the sense of ornamental ritual regularities in the conduct of office. What is at stake are rules—rules meant to ensure objective judgment and fair dealing no matter who the subject may be or how you may feel about his or her conduct. These are fair-minded rules put in place by the painfully slow accession of power to procedure, equitable rules put in place over time and that, historically, remain vanishingly rare. As “Game of Thrones” reminds us—it may be the chief reason for the show’s current appeal—the rule of pure power asserting itself exactly as it likes whenever it likes is what most often happens among human beings.

This is why the idea that Mueller cleverly engineered his report to force Congress to act misses the point. Mueller didn’t intend it. The rules did. This is why impeachment—at least attempting to remove from power someone obviously unfit to hold it, whatever the outcome may be—has, within a week, passed from a distant speculative possibility to what seems to many like a primary moral duty. It is being miscast as a prudential act, or even as an act of overdue partisan aggression. Right now, it seems more like collective self-defense against a common danger.

#Resist

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5 persistent myths about the Mueller report

The redacted Mueller report has been out for 10 days, and yet misinformation persists. Whether because of partisanship, the length of the report, unfamiliarity with legal concepts, or straight-up lies, many false claims keep popping up again and again.

Let’s run through and correct some of them.

Myth No. 1: It said ‘no collusion,’ period
For many Trump supporters, the report vindicated President Trump’s long-standing “no collusion” mantra.

It certainly bolstered the Trump team’s case that there wasn’t some large-scale effort to work with Russia to throw an election. But as has been reported, including by The Washington Post’s Philip Bump, the report doesn’t address collusion, because collusion is not a legal concept. Instead, the report was more narrow in its conclusions, finding there was no “conspiracy” or “coordination” between the Trump campaign and Russian government officials.

Here’s the key section:

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” ... The Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined m federal law. In connection with that analysis, we addressed the factual question whether members of the Trump Campaign “coordinat[ed]” — a term that appears in the appointment order — with Russian election interference activities. Like collusion, ‘coordination’ does not have a settled definition in federal criminal law. We understood coordination to require an agreement — tacit or express — between the Trump Campaign and the Russian government on election interference.”

In short, it’s possible to have colluded in some way — depending upon how you define the nebulous term “collusion” — without there having been an actual agreement or an arrangement that meets the legal definition of conspiracy.

Special counsel Robert S. Mueller III dealt with the legal question, which was his purview and responsibility. Politically speaking, though, even if something like the Trump Tower meeting might not have crossed a legal threshold, it’s possible to still regard it as being problematic.

Myth No. 2: Mueller decided he couldn’t decide on obstruction
One of the many ways in which Attorney General William P. Barr seemed to pre-spin the Mueller report in a positive direction for Trump was on obstruction of justice.

In his initial letter summarizing the report, he said Mueller came to no conclusion on obstruction of justice, neither accusing nor exonerating Trump. But he didn’t elaborate as to why. At his news conference just before the report’s release, Barr was asked whether that was because Mueller was conflicted or because of Justice Department policy, and he talked around it.

Turns out it was the latter, but people are still mischaracterizing Mueller’s obstruction decision.

As Mueller explained, his decision not to accuse or exonerate Trump on obstruction of justice was all about the fact that the Justice Department doesn’t charge sitting presidents with crimes:

The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment, At the same time, 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.

So no matter how damaging the evidence, Mueller decided it wasn’t his place to accuse the president of crimes; he could only clear him of crimes.

And if you look more closely, there are five different events on which Mueller seems to have found evidence of the three key criteria required for an obstruction charge.

Myth No. 3: Trump fully cooperated
Speaking of areas in which Barr has gone to bat for Trump in a misleading way: He said at his news conference that “the White House fully cooperated with the Special Counsel’s investigation."

Trump added Thursday night in an interview with Fox News’s Sean Hannity: “I was totally transparent. I didn’t tell anybody you can’t go [interview with Mueller]. I could have. I could have said, ‘You are not going to testify. Nobody is going to testify.’ "

The narrative is that Mueller had everything he needed, and he couldn’t provide the goods.

Except Trump did not fully cooperate. The White House did hand over lots and lots of documents and allow people such as White House counsel Donald McGahn to cooperate, yes, but its cooperation fell short in one massive way: Trump wouldn’t testify.

Mueller clearly wanted it, but there was a months-long standoff. Eventually, as Mueller detailed in his report, he basically decided issuing a subpoena would prolong things too much.

Trump gave written answers to some of Mueller’s questions, but an in-person interview would undoubtedly have helped Mueller — especially when it comes to determining Trump’s intent on some of the 10 areas he examined for obstruction.

Myth No. 4: There is no underlying crime
Part of Barr’s rationale for exonerating Trump on obstruction, even though Mueller hadn’t, was that Mueller had cleared Trump of conspiracy.

“In making this determination, we noted that the Special Counsel recognized that ‘the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction,” Barr wrote in his initial summary.

It’s correct that the lack of an underlying crime can be a mitigating circumstance when it comes to obstruction; if you don’t have something to cover up, after all, it suggests your intent wasn’t so corrupt.

But in this case, there were underlying crimes — lots of them. Trump’s own aides pleaded guilty to lying at various junctures. His campaign chairman, Paul Manafort, was convicted of a series of crimes, as was his lawyer/fixer Michael Cohen. And Trump has even been implicated in crimes — campaign finance violations — in the Cohen case that was related to the Mueller probe.

Trump also rather obviously didn’t like the story line that Russia made the difference in electing him, so he also had a political motive to want to hamper the investigation. When the special counsel was appointed, Mueller reported, Trump said he was “fucked” and that it was the “end of my presidency.”

So the idea that Trump had nothing to hide — including crimes — by obstructing the investigation is pretty far-fetched.

Myth No. 5: Trump has been accused of a crime in the Cohen case
An offshoot of the above is the argument that not only are there underlying crimes, but also that Trump himself has been accused of one. But that’s just not true.

Trump has indeed been named by the Southern District of New York as a participant in Cohen’s campaign finance violations, which relate to the hush-money payments made to Stormy Daniels and Karen McDougal. But being named as part of a scheme isn’t the same as being accused of a crime. Trump has argued that he didn’t direct Cohen to do anything illegal and trusted him not to, even as he tasked Cohen with handling the situations.

As it was with Mueller, it’s not clear whether the SDNY isn’t accusing Trump of a crime because he’s a sitting president or because it hasn’t established that his conduct was criminal. And as with Mueller, it’s possible the SDNY thinks Trump committed a crime but just can’t or won’t say so.

But we simply don’t know at this point, so to say Trump has been accused of a crime is wrong. To say he’s been implicated in one is more accurate.

Figured I better post this before the SPIN MACHINE starts shitting out lie after lie.

#Resist

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The Special Counsel’s Constitutional Analysis: Corrupt Intent and the Take Care Clause

Special Counsel Robert Mueller’s report found that the federal obstruction of justice statutes can apply to the president, even though the statutes do not state this expressly. Robert Mueller chose not to apply the avoidance canon known as the “clear statement” rule. In a recent Lawfare post, I argued that this decision was inconsistent with precedent from the Office of Legal Counsel (OLC).

Yet, Mueller did engage in a different, if subtler, form of as-applied constitutional avoidance. He concluded the obstruction statutes can generally apply to the president because “a ‘corrupt’ official action does not diminish the President’s ability to exercise Article II powers.” This argument is premised on a novel theory of the Take Care Clause that no court of record has even hinted at. Mueller may be right about this theory in many, if not most cases. But he should have exercised far more caution in advancing this sweeping constitutional argument. That lack of caution reaffirms, once again, how far he departed from OLC’s limited discussion of the President’s amenability to the criminal law. A 1995 OLC opinion hints only that the president could violate the federal bribery statute And that lack of caution reaffirms why the clear statement rule was the optimal way to resolve this issue.

Mueller writes that the federal obstruction statutes share three common elements: (1) an obstructive act; (2) a nexus between the obstructive act and an official proceeding; and (3) a corrupt intent. Justice Antonin Scalia’s partial dissent in U.S. v. Aguilar stated that “the term ‘corruptly’ in criminal laws has a long-standing and well-accepted meaning.” The term “denotes ‘an act done with an intent to give some advantage inconsistent with official duty and the rights of others....” Mueller’s report adopts Justice Scalia’s conception of “corruptly.” This analysis hints at something of a saving construction, with three parts.

First, the special counsel writes that “the term ‘corruptly’ sets a demanding standard.” The government would have to make “a concrete showing that a person acted with an intent to obtain an improper advantage for himself or someone else, inconsistent with official duty and the rights of others.” The emphasized portion reflects Justice Scalia’s “long-standing” definition of “corruptly” from Aguilar. Second, Mueller reasons that “a general ban on corrupt action does not unduly intrude on the President’s responsibility to ‘take Care that the Laws be faithfully executed.’” In other words, a “corrupt” action that is “inconsistent with official duty” is by necessity an action the president lacks the power to take. Mueller writes that the “standard” Justice Scalia identified in Aguilar “parallels the President’s constitutional obligation to ensure the faithful execution of the laws” (emphasis added).  (Elsewhere, Mueller writes that this standard “aligns with the President’s constitutional duty to faithfully execute the laws.”) Specifically, Mueller observes that “virtually everything that the President does in the routine conduct of office will have a clear governmental purpose and will not be contrary to his official duty.” Therefore, third, “the President has no reason to be chilled in those official actions because, in virtually all instances, there will be no credible basis for suspecting a corrupt personal motive.”

This saving construction, which is developed at several junctures of the report, can be reduced to a three-part syllogism: (1) It is inconsistent with the official duties of the president to take official actions that are not faithful executions of the law; (2) acting with a “corrupt personal motive” is “parallel” to, or “aligns with,” taking actions that are not faithful executions of the law; and (3) therefore, Article II does not prevent Congress from criminalizing “corrupt” actions, such as obstruction of justice, because those actions are inconsistent with the official duties of the president.  

The first element is fairly obvious. It derives straight from the text of the Take Care Clause, which provides that the president “shall take Care that the Laws be faithfully executed.” The third element is also true, if in fact a “corrupt” action is “inconsistent with the official duty”: if the Constitution does not give the president the power to do X, then Congress can pass a statute that prevents the president from doing X.

The entire syllogism, then, turns on the second element: Are actions taken with a “corrupt personal motive” “parallel” to, or “aligned with,” unfaithful executions of the law? Consider the following diagram, which illustrates Mueller’s perspective: all actions that are taken with a “corrupt” intent are also  “unfaithful executions.” Congress could only criminalize actions in the black circle. Congress could not criminalize actions taken in the white circle.

But this model need not be correct. There may be actions, taken with corrupt intent, to obstruct a current or envisioned judicial proceeding, that are still faithful executions of the law.

I discussed such situations on Lawfare in 2017. Consider a hypothetical based on a slightly modified version of the facts in the Mueller report. The president concludes that the special counsel’s investigation into his campaign placed a “cloud” over his ability to negotiate foreign affairs with Russia and other countries. In other words, the investigation itself is frustrating his ability to faithfully execute the laws. The president also recognizes that removing the special counsel would suppress investigations into possible criminal activities from the campaign, and that he would personally benefit from putting the kibosh on the investigation. What should the president do in that circumstances? Let the special counsel continue to hamper his foreign affairs, to avoid the risk of committing obstruction? Or remove the special counsel to improve foreign relations, knowing that such an action could give rise to an obstruction investigation, and perhaps an indictment?

Mueller’s theory of the case would expose the president to that sort of dilemma. Virtually all other governmental officials who face such a conflict could step aside or recuse and allow someone else to make that decision. Not so for the president. The Constitution empowers one person, and one person alone, to take these actions.

Alternatively, there may be actions taken with a corrupt intent that straddle the line between faithful and unfaithful executions of the law. For example, the president doesn’t really think that removing the special counsel would lift the “cloud” over foreign affairs, but he is willing to take the chance.

There is little precedent to decide these questions one way, or the other. The Constitution does not require the president to make such a difficult choice. The clear statement rule, again, obviates that dilemma.

How does Mueller explain why Justice Scalia’s discussion of the obstruction statute “aligns with,” or is “parallel” to, the Take Care Clause? Mueller offered a single citation to a popular 18th century dictionary: "To the contrary, the concept of 'faithful execution' connotes the use of power in the interest of the public, not in the office holder’s personal interests. See 1 Samuel Johnson, A Dictionary of the English Language 763 (1755) ('faithfully' def 3: 'with strict adherence to duty and allegiance')."

I am very familiar with this definition. In 2015—long before President Trump’s election was even conceivable—I surveyed founding-era dictionaries to develop the original understanding the Take Care Clause. I turned to these primary sources because the Supreme Court has said strikingly little about this provision. Mueller cites several of the leading Supreme Court’s precedents, including Myers v. U.S., U.S. v. Armstrong, Bowsher v. Synar, Morrison v. Olson, and Free Enterprise Fund v. PCAOB. Yet none of these cases supports the conclusion that “the concept of ‘faithful execution’ connotes the use of power in the interest of the public, not in the office holder’s personal interests.” Mueller, like me, turned to some form of originalist analysis to shed light on this seldom-interpreted constitutional provision.

As an academic exercise, it is both necessary and proper to develop constitutional theories based on primary sources. And, in such academic exercises, the author should be candid that his theory is tentative and cannot be supported by any judicial precedent. For example, in my article, I offered analyses of several aspects of the clause: what sort of duty does “shall” impose; what does it means to act with “care;” what does it mean to “execute;” and what does it mean to “execute” “the laws” “faithfully.” I also studied the common law history of faithful execution, and similar provisions in state constitutions. Even with that background, I still acknowledge that the meaning is not self-evident, and the absence of judicial authority makes the task even more fraught.

Mueller did not exercise that caution. He drew important conclusions about a particularly enigmatic provision of the Constitution, citing solely a dictionary definition of a single word in the clause. There is work that could have supported his theory, but he didn't even acknowledge it. Ultimately, only a thin reed supports his broad conclusion.

Regrettably, the Mueller report is not a mere academic exercise. Mueller made significant allegations about the culpability of the president, based on threadbare constitutional analysis. The Take Care Clause is not a general good governance provision. It is not a constitutionalized version of the obstruction of justice statute. The Take Care Clause is not a Rorschach test that prohibits whatever you want it to prohibit. The Take Care Clause has a meaning, and Mueller did not do the work to ascertain its meaning.

Moreover, the Take Care Clause is a poor candidate to assess whether actions that the president takes himself are unconstitutional. This provision concerns the president’s supervisory powers—that “the laws be faithfully executed” by subordinates. Peter Straus has observed that the “passive voice of the Take Care Clause ... confirms that the President is not the one whose direct action is contemplated.” Strauss is not alone—other academics have made closely similar points. Jack Goldsmith and John Manning wrote that the Take Care Clause, “phrased in a passive voice . . . seems to impose upon the President some sort of duty to exercise unspecified means to get those who execute the law, whoever they may be, to act with some sort of fidelity that the clause does not define.” Mueller makes no effort to explain how a provision concerning the president’s supervisory duties restricts personal “corrupt” actions he takes outside his supervisory role—that is, actions he takes independently of anyone else in the executive branch For example, at least one of the alleged obstructive acts concerned instructions Trump gave to Corey Lewandowski who was not even a government official. The Take Care Clause has no relevance in that situation.

The Oaths Clause is a far better candidate to assess whether the president himself violates the law. It provides: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” That provision also refers faithful execution. Yet, the special counsel did not even mention it—and for good reason. While the Supreme Court has said very little about the Take Care Clause, there are no opinions, as far as I know, about the Oath Clause.

Were the OLC asked to opine on the interplay between the obstruction statute and Article II, a published opinion would have carefully parsed the history of the Take Care Clause. If the solicitor general addressed this issue before the Supreme Court, his brief would at least acknowledge competing interpretations of the Clause, and explain why one side was better than the other. But Mueller’s constitutional analysis was neither thorough nor balanced. He reached a conclusion without any reasoning and did not even acknowledge contrary authorities. This constitutional omission is even more glaring in light of the rigorous approach the special counsel used for his statutory analysis.

Two decades ago, Independent Counsel Ken Starr solicited a legal analysis about whether the sitting President could be indicted. At the time, the OLC had not yet opined on the issue. Professor Ronald Rotunda produced a 56-page detailed memorandum that answered this question in the affirmative. Agree or disagree with Rotunda’s analysis, there was no doubt about the basis of his reasoning. We do not know whether he developed such a document in-house or contracted with academics to develop this analysis. (There would not have been a shortage of volunteers.) But his published work does not reflect the analysis necessary to carry the burden needed to establish this new constitutional rule. Mueller only cited a single dictionary. As a result, his thin analysis must stand on its own.

The clear statement rule provides the optimal way to resolve the question of whether the obstruction statute should apply to the president. To apply Mueller’s as-applied “corruption” saving construction, the special counsel had to make broad assumptions about the meaning of one of the Constitution’s most enigmatic provisions. He failed to support his reasoning—and in the process, developed a sweeping theory of constitutional law. As I will examine,  under Mueller’s strained interpretation, the obstruction statute unduly chills the president in the performance of his Article II duties.

#Resist

[Athos_131]

Mueller complained that Barr’s letter did not capture ‘context’ of Trump probe

Special counsel Robert S. Mueller III wrote a letter in late March complaining to Attorney General William P. Barr that a four-page memo to Congress describing the principal conclusions of the investigation into President Trump “did not fully capture the context, nature, and substance” of Mueller’s work, according to a copy of the letter reviewed Tuesday by The Washington Post.

At the time the letter was sent on March 27, Barr had announced that Mueller had not found a conspiracy between the Trump campaign and Russian officials seeking to interfere in the 2016 presidential election. Barr also said Mueller had not reached a conclusion about whether Trump had tried to obstruct justice, but Barr reviewed the evidence and found it insufficient to support such a charge.

Days after Barr’s announcement, Mueller wrote a previously unknown private letter to the Justice Department, which revealed a degree of dissatisfaction with the public discussion of Mueller’s work that shocked senior Justice Department officials, according to people familiar with the discussions.

“The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this office’s work and conclusions,” Mueller wrote. “There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”

The letter made a key request: that Barr release the 448-page report’s introductions and executive summaries, and made some initial suggested redactions for doing so, according to Justice Department officials.

Justice Department officials said Tuesday they were taken aback by the tone of Mueller’s letter, and it came as a surprise to them that he had such concerns. Until they received the letter, they believed Mueller was in agreement with them on the process of reviewing the report and redacting certain types of information, a process that took several weeks. Barr has testified to Congress previously that Mueller declined the opportunity to review his four-page letter to lawmakers that distilled the essence of the special counsel’s findings.

In his letter, Mueller wrote that the redaction process “need not delay release of the enclosed materials. Release at this time would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation.”

Barr is scheduled to appear Wednesday morning before the Senate Judiciary Committee — a much-anticipated public confrontation between the nation’s top law enforcement official and Democratic lawmakers, where he is likely to be questioned at length about his interactions with Mueller.

A day after the letter was sent, Barr and Mueller spoke by phone for about 15 minutes, according to law enforcement officials.

In that call, Mueller said he was concerned that news coverage of the obstruction investigation was misguided and creating public misunderstandings about the office’s work, according to Justice Department officials.

When Barr pressed him whether he thought Barr’s letter was inaccurate, Mueller said he did not, but felt that the media coverage of the letter was misinterpreting the investigation, officials said.

In their call, Barr also took issue with Mueller calling his letter a “summary,” saying he had never meant his letter to summarize the voluminous report, but instead provide an account of the top conclusions, officials said.

Justice Department officials said in some ways, the phone conversation was more cordial than the letter that preceded it, but they did express some differences of opinion about how to proceed.

Barr said he did not want to put out pieces of the report, but rather issue it all at once with redactions, and didn’t want to change course now, according to officials.

Throughout the conversation, Mueller’s main worry was that the public was not getting an accurate understanding of the obstruction investigation, officials said.

“After the Attorney General received Special Counsel Mueller’s letter, he called him to discuss it,” a Justice Department spokeswoman said Tuesday. “In a cordial and professional conversation, the Special Counsel emphasized that nothing in the Attorney General’s March 24 letter was inaccurate or misleading. But, he expressed frustration over the lack of context and the resulting media coverage regarding the Special Counsel’s obstruction analysis. They then discussed whether additional context from the report would be helpful and could be quickly released.

“However, the Attorney General ultimately determined that it would not be productive to release the report in piecemeal fashion,” the spokeswoman’s statement continues. “The Attorney General and the Special Counsel agreed to get the full report out with necessary redactions as expeditiously as possible. The next day, the Attorney General sent a letter to Congress reiterating that his March 24 letter was not intended to be a summary of the report, but instead only stated the Special Counsel’s principal conclusions, and volunteered to testify before both Senate and House Judiciary Committees on May 1 and 2.”

Some senior Justice Department officials were frustrated by Mueller’s complaints, because they had expected that the report would reach them with proposed redactions the first time they got it, but it did not. Even when Mueller sent along his suggested redactions, those covered only a few areas of protected information, and the documents required further review, these people said.

Wednesday’s hearing will be the first time lawmakers will get to question Barr since the Mueller report was released on April 18, and he is expected to face a raft of tough questions from Democrats about his public announcement of the findings, his private interactions with Mueller, and his views about President Trump’s conduct.

Republicans on the committee are expected to question Barr about an assertion he made earlier this month that government officials had engaged in “spying” on the Trump campaign — a comment that was seized on by the president’s supporters as evidence the investigation into the president was biased.

Barr is also scheduled to testify Thursday before a House committee, but that hearing could be canceled or postponed amid a dispute about whether committee staff lawyers will question the attorney general.

Democrats have accused Barr of downplaying the seriousness of the evidence against the president.

In the report, Mueller described ten significant episodes of possible obstruction of justice, but said that due to long-standing Justice Department policy that says a sitting president cannot be indicted, and because of Justice Department practice regarding fairness toward those under investigation, his team did not reach a conclusion about whether the president had committed a crime.

#Resist

[Athos_131]

The Mueller report: A catalog of 77 Trump team lies and falsehoods

Washington (CNN)The Mueller report documents at least 77 specific instances where President Donald Trump's campaign staff, administration officials and family members, Republican backers and his associates lied or made false assertions (sometimes unintentionally) to the public, Congress, or authorities, according to a new CNN analysis. The plurality of lies came from Trump himself, and most of them took place while he was president.

The redacted version of the 448-page report released by the Justice Department earlier this month didn't find conspiracy or coordination between the Trump campaign and the Russian government. Special counsel Robert Mueller did not decide whether Trump obstructed justice in violation of the law, though he investigated it thoroughly and found in several instances both potentially obstructive behavior and motive.

Yet the document serves another purpose: a catalog of what was and wasn't true regarding the 2016 campaign and the Trump administration.
Some of the lies that CNN found Mueller prosecuted as crimes -- like in the court cases against Michael Flynn, Trump's first national security adviser, who admitted to lying to the FBI, and Michael Cohen, his former lawyer and fixer who admitted to lying to Congress.
Many however, have not led to court cases, since they were told by the President or his communications staff to the American public, at press conferences, in interviews and in official statements.

Others were lies of omission, or involved wrong information given initially to investigators and then corrected, sometimes with consequence, sometimes without. Except in regard to the President's assertions, Mueller often did not delve into a person's intent, instead just laying out the facts he had unearthed.

One comment in particular seems to capture how the President views giving false statements to the press. Mueller notes that during the effort to spread a lie about his involvement in the response to news of the Trump Tower meeting in June 2016, Trump told a group of reporters outside the White House, "It's a statement to the New York Times ... That's not a statement to a high tribunal of judges."

How we analyzed the report

CNN's approach to analyzing the report was this: Every time Mueller documented a false assertion made to the public or federal officials -- even if it was the same falsehood told again and again -- it was counted. This includes lies to investigators and to Congress, who represent the public. CNN did not include efforts on the part of the White House to get other administration officials to lie, of which Mueller notes several instances.

The final portrait as written by Mueller reveals eight major topics around which Trump and his associates pushed false stories, from his interactions with former FBI Director James Comey, to the negotiations about a Trump Tower project in Moscow, to the President's flat denial that US intelligence had found the Russian government was involved in the hack of the Democratic National Committee.

Sometimes, Mueller lays it out cold, saying a person asserted something "falsely." At other times, Mueller describes a cascade of assertions -- often by the President -- only to pull back later to say that "substantial evidence" contradicts the statements. On a few occasions, Mueller couldn't determine the truth, but outlines how at least one person among a group must have been giving false information.

In its analysis, CNN counted instances where Mueller noted multiple people giving different versions of events as one false assertion each.

CNN's analysis also counted situations where false information was shared yet Mueller didn't always make clear whether the person intended to give bad information. In a few cases, Mueller documented how some of the people had explanations regarding the information they shared.

In all, although he seldom uses the term, Mueller's effort may be the first comprehensive finding by a federal investigator to document the lies to the American public told by the Trump campaign and administration.

Trump Tower Moscow project

What Donald Trump said:

Trump faced an onslaught of questions about Russia at the only press conference he gave during the presidential transition, on January 11, 2017. Asked about his potential financial ties to Russia, Trump replied: "I have no dealings with Russia. I have no deals that could happen in Russia, because we've stayed away. And I have no loans with Russia." This gave the false impression that Trump never pursued any Russian deals, even though he did in 2016.

What the report said:

"Trump responded to questions (from the media) about possible connections to Russia by denying any business involvement in Russia — even though the Trump Organization had pursued a business project in Russia as late as June 2016."


What Michael Cohen said:

Former Trump attorney Michael Cohen repeatedly lied to Congress about Trump Tower Moscow and later pleaded guilty to making false statements. Specifically, Cohen lied about his attempts to reach Kremlin spokesman Dmitry Peskov in hopes of getting government approval for the Trump-branded real estate deal. On August 28, 2017, Cohen sent a letter to the House Intelligence Committee, which said: "I... do not recall any response to my email, nor any other contacts by me with Mr. Peskov or other Russian government officials about the proposal."

What the report said:

"Each of the foregoing representations in Cohen's two-page statement was false and misleading... Cohen did recall that he had received a response to the email that he sent to Russian government spokesman Dmitry Peskov — in particular, that he received an email reply and had a follow-up phone conversation with an English-speaking assistant to Peskov in mid-January 2016."

Mueller uncovered a systematic effort by Trump and his onetime attorney Cohen to mislead the public about Trump's financial ties to Russia. The deception spanned years and included lies to the voters, the press, congressional committees and Mueller's investigators. In all, Mueller called out at least 30 lies or misleading statements about Trump Tower Moscow.
Since the campaign, Trump publicly denied having any business ties to Russia. He often repeated, "I have nothing to do with Russia," and said he stayed away from Russian deals.
But the Mueller report documented how the Trump Organization pursued a lucrative business proposal in Moscow. Cohen led the negotiations, which included direct contacts with Kremlin officials. Trump knew about the effort and it lasted until June 2016, well into the campaign.

Initial details of the deal trickled out in mid-2017. But the cover-up continued until November 2018, when Cohen pleaded guilty to lying to Congress about when the project ended and how much Trump knew about it. For these crimes and others, Cohen is heading to prison this spring.

The report also highlighted at least 15 times Trump misled the public about this critical topic. Mueller even rebuked Trump for not "directly" answering questions about the Moscow project in written testimony he submitted last year. Trump never agreed to an in-person interview.
Comey firing and fallout

What Donald Trump said:

In a July 19, 2017, interview with the New York Times, President Donald Trump wrongly denied pushing then-FBI Director James Comey into a one-on-one conversation. The Times asked him, "Did you shoo other people out of the room when you talked to Comey?

"No, no," Trump said.

"Did you actually have a one-on-one with Comey then?"

Trump responded, "Not much. Not even that I remember."

What the report said:

Mueller found that "despite those denials, substantial evidence corroborates Comey's account."


What Sarah Sanders said:

At a press conference on May 10, 2017, the day after Comey's firing, White House deputy press secretary Sarah Sanders spun the decision as one backed up, falsely, by FBI agents who didn't trust their leader. "The rank and file of the FBI had lost confidence in their director," she told assembled press. A reporter pushed back, citing information that a majority of FBI agents supported Comey, yet Sanders still replied, wrongly, "Look, we've heard from countless members of the FBI that say very different things," Mueller noted.

What the report said:

"Following the press conference, Sanders spoke to the President, who told her she did a good job and did not point out any inaccuracies in her comments. Sanders told this Office that her reference to hearing from 'countless members of the FBI' was a 'slip of the tongue.'"

The Mueller report documents at least a dozen instances where Trump and his associates lied or made false assertions about the facts surrounding the firing of Comey. Sometimes, these falsehoods multiplied through attempts at damage control, and the President and his staff spread them on Twitter, in interviews and in official White House statements.

Mueller documents how Trump was incensed over the FBI's Russia investigation and the questions he felt that it raised over the legitimacy of his election win. At first, Trump asked Comey to lay off his national security adviser Flynn, then later fired Comey, who refused to pledge his loyalty.

All in all, Mueller documented the President and the White House lying multiple times about why he fired Comey and the circumstances that led to the firing.
For example, Trump tweeted: "I never asked Comey to stop investigating Flynn. Just more Fake News covering another Comey lie!"

In truth, Trump had invited Comey to dinner, asked for the FBI director's loyalty and asked Comey about "letting Flynn go," since his national security adviser was under investigation.
Mueller ultimately sided with Comey's version of the story, after corroborating it with multiple other sources -- even the President's daily diary. "Despite those denials [from Trump], substantial evidence corroborates Comey's account," Mueller wrote.

White House press secretaries Sarah Sanders and Sean Spicer, as well as Trump's attorney Marc Kasowitz, also pushed false versions of the events involving Comey. Sanders admitted to Mueller her negative statements to the press about Comey as the FBI's leader were a "slip of the tongue" and said "in the heat of the moment."
Trump Tower meeting

What Trump's attorney said:

Donald Trump's personal attorney Jay Sekulow in July 2017 denied on Good Morning America, Meet the Press and to CNN that the President was involved in writing the statement from Donald Trump Jr. about the Trump Tower meeting- even though Trump had dictated the statement that his son issued.

What the report said:

After the statement was released, "The President's personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr.'s statement," Mueller wrote.  Trump's legal team, which included Sekulow, reversed what they told the press when they discussed what happened with the special counsel's office.

"Several months later, the President's personal counsel stated in a private communication to the Special Counsel's Office that 'the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.' The President later told the press that it was 'irrelevant' whether he dictated the statement and said, 'It's a statement to the New York Times .... That's not a statement to a high tribunal of judges.'

Mueller found that Donald Trump Jr.'s public statement about the June 2016 Trump Tower meeting was the start of a coordinated effort to mischaracterize the nature of the meeting and to protect the President. Campaign leaders had expected the meeting to include discussion of possible damaging information on Hillary Clinton.

The public response from Trump's team about the meeting was rife with misdirection from the beginning, including at least nine instances of falsehoods.

A spokesperson for Trump's personal legal team, Mark Corallo, worked with the conservative news site Circa News to create a story to bring into question whether the Trump Tower meeting was a setup orchestrated by Democratic operatives, Muller noted. It wasn't.

Trump Jr. issued a statement in July 2017 wrongly claiming that the meeting was primarily about Russian adoptions. Instead, the discussion centered on US sanctions against Russians.

Jay Sekulow, Trump's personal attorney, also pushed a false narrative. In several interviews, he said that Trump hadn't dictated Trump Jr.'s statement. Trump's attorneys later admitted to Mueller that Trump had indeed dictated it. Sanders also falsely told the press that Trump didn't dictate the statement.

And finally, Mueller flags one of those pesky "who was lying?" situations -- leaving a major question of the Russia investigation still unresolved. Did then-candidate Trump know about the meeting in advance?

Cohen told prosecutors that yes, he did -- and Cohen had witnessed the conversation between Trump Jr. and his father, but Cohen noted that he "did not recall Trump Jr. stating the meeting was connected to Russia."

But Trump Jr. told the Senate Judiciary Committee the opposite. He said he hadn't spoken to his father about it in advance. Trump campaign chairman Manafort and son-in-law Jared Kushner, the meeting's other attendees, backed up this story when they spoke to investigators and said they didn't recall anyone informing Trump of the meeting. Trump, in his own written answers to Mueller's questions, said he had "no recollection" of the meeting in advance.

Mueller wasn't able to determine the truth.

Flynn's calls with Kislyak

What Michael Flynn said:

On January 24, 2017, Trump's first national security adviser Michael Flynn lied during an interview with FBI agents about his calls with Russian ambassador Sergey Kislyak. Flynn falsely denied asking Kislyak to hold back from strongly retaliating against new US sanctions. Flynn resigned after press reports revealed the calls, and later pleaded guilty to lying to the FBI.

What the report said:

"During the interview, which took place at the White House, Flynn falsely stated that he did not ask Kislyak to refrain from escalating the situation in response to the sanctions on Russia imposed by the Obama Administration."


What KT McFarland said:

Michael Flynn's deputy, KT McFarland, provided false information to Washington Post columnist David Ignatius about Flynn's calls with Sergey Kislyak. She claimed the calls took place before the new sanctions were announced and that sanctions didn't come up. McFarland wasn't personally quoted in the subsequent article but appeared as an unnamed "Trump official," according to Mueller's report.

What the report said:

"Flynn directed McFarland to call the Washington Post columnist and inform him that no discussion of sanctions had occurred. McFarland recalled that Flynn said words to the effect of, 'I want to kill the story.' McFarland made the call as Flynn had requested although she knew she was providing false information."

The report shed new light on one of the earliest episodes in the investigation: The fallout from Flynn's phone calls with the Russian ambassador. Mueller identified at least seven lies and false assertions from five senior White House officials about the incident.

The cover story was that Flynn was in contact with then-Russian ambassador Sergey Kislyak during the transition, but they never discussed sanctions. It soon came out that Flynn worked with Kislyak to tamp down the Russian response to sanctions imposed by the Obama administration to punish the Kremlin for interfering in the 2016 election.

The Mueller report detailed how Flynn lied repeatedly to FBI agents on White House grounds when he was interviewed in January 2017. That ultimately led to his resignation and criminal conviction for making false statements. He later became one of Mueller's marquee cooperators.

The report also laid out how Flynn lied to others in the White House. Vice President Mike Pence, former chief of staff Reince Priebus, and Spicer repeated Flynn's lies on national television and "unwittingly misled the American public," the report says.
While those officials were in the dark, Flynn's deputy KT McFarland knew the fuller story. Still, she called a prominent journalist and falsely denied that Flynn discussed sanctions.
Additional contacts with Russians

What Jared Kushner and Avi Berkowitz said:

Trump's son-in-law Jared Kushner, who is now a senior White House adviser, met with a prominent Russian government banker in December 2016. When Mueller's investigators asked about that encounter, Kushner claimed nobody on the transition team prepared for the meeting.

What the report said:

"Kushner stated in an interview that he did not engage in any preparation for the meeting and that no one on the Transition Team even did a Google search for Gorkov's name... (Kushner's personal assistant Avi) Berkowitz, by contrast, stated to the Office that he had googled Gorkov's name and told Kushner that Gorkov appeared to be a banker."

The false narrative from Team Trump began two days after he was elected. Hope Hicks, his transition spokeswoman who later worked in the White House, said in two press interviews that, "there was no communication between the campaign and any foreign entity during the campaign."

It only took a few weeks for this narrative to start unraveling. Mueller's report exposed the breadth of these contacts, with more than 100 pages detailing the numerous meetings, phone calls, emails, text messages and other communications between Trump associates and Russians.

The report examined how several prominent Trump allies lied or made wrong assertions to investigators about their contacts with Russians -- in addition to the episodes already described above.

There's Kushner, who told Mueller that he didn't prepare at all for a meeting with a Russian banker, despite his personal assistant testifying that they used Google to find information on him. There's also Erik Prince, the Trump donor and Blackwater founder whose statements to Congress and the press were undercut by the report, which revealed that his meeting in the Seychelles with another Russian banker was highly choreographed and not some random encounter.

In the report, however, Mueller concedes that some Trump campaign associates stymied his efforts to run down every lead in the investigation of potential coordination with Russia, and that there might still be more to learn.
Attempts to fire Mueller

What The White House said:

In June 2017, President Donald Trump dictated a statement for Press Secretary Sarah Sanders to provide to the press, saying Trump had "no intention" to fire special counsel Robert Mueller. Yet that same day, his attorneys contacted Mueller's office to flag their concerns about ethics, and shortly after, Trump told his White House counsel to remove Mueller from his duties.

What the report said:

"A threshold question is whether the President in fact directed McGahn to have the special counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts ... "Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed."

Two times, Mueller explained how Trump attempted to cover up the episode where he had told White House counsel Don McGahn to rid him of the Mueller investigation.
In early 2018, news organizations were reporting that Trump had ordered McGahn to remove the special counsel. Mueller ultimately investigated this as part of his probe into whether the President obstructed justice.

Once the story broke, Trump dismissed it, calling it "fake news, folks. Fake news."
McGahn told Mueller the truth, the report found, and Mueller certified that McGahn had "no motive to lie or exaggerate given the position he held in the White House."
Presidential pardons

What Donald Trump said:

Speaking to reporters at the White House on June 8, 2018, Trump said he wasn't considering pardons for anyone related to the Russia investigation. "I haven't even thought about it," he said, "I haven't thought about any of it. It certainly is far too early to be thinking about that." Yet Mueller documents how Cohen was given the opposite impression in multiple conversations with lawyers around the President.

What the report said:

The report does not say outright what the President's awareness was of these conversations, yet Mueller lays out a succession of evidence detailing the ways that Cohen got the impression that a pardon was possible. Mueller notes that Cohen "recalled speaking with the President's personal counsel about pardons after the searches of his home and office had occurred" in April 2018, two months before Trump's comments.

Mueller adds: "Cohen understood based on this conversation and previous conversations about pardons with the President's personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down."

The prospect of Trump using his presidential pardon powers to protect his allies never became a reality during the two-year course of the investigation, but it always bubbled near the surface.

Both publicly and privately, Trump and his personal attorney Rudy Giuliani repeatedly refused to rule out eventual pardons for Flynn, Manafort and for a brief stretch of time, even Cohen. The report identifies at least two instances where the White House gave bad information to the public about the status of these talks, denying that the topic of pardons was ever once raised.

These statements, and the backchannel talks among lawyers about how Trump would "take care of" people who didn't cooperate with Mueller, factored into the obstruction investigation. Mueller concluded that Trump "intended to encourage Manafort to not cooperate with the government" and that Trump wanted Manafort "to believe that he could receive a pardon."

This all came at a critical time. Manafort was mulling a plea deal, which he ultimately struck with Mueller's team. But while ostensibly assisting the investigation, Manafort lied about some topics at the heart of the investigation into potential coordination with Russia, and prosecutors later said he wasn't much help.
Despite the public suggestions, Trump hasn't granted any pardons to any Mueller defendants. Manafort arrived last week at a federal prison in Pennsylvania and is scheduled for release in 2024.

Russian hacks and WikiLeaks

What Donald Trump said:

In an interview with Fox News on December 11, 2016, Trump falsely claimed that US intelligence agencies didn't know who was responsible for the election related hacks against Democrats. He said: "They have no idea if it's Russia or China or somebody. It could be somebody sitting in a bed some place. I mean, they have no idea." Trump said this even though the US intelligence community had already publicly blamed the Russian government for the hacks.

What the report said:

The report describes how the US government publicly blamed Russia for some of the hacks two months before Trump's comments. The report also notes that Trump said this shortly after "the press reported that U.S. intelligence agencies had 'concluded that Russia interfered in last month's presidential election to boost Donald Trump's bid for the White House.'" That article was soon confirmed in a January 2017 public report from US intelligence agencies on Russian meddling.

Despite overwhelming evidence, which was bolstered by the report, Trump himself has never unequivocally stated that he accepts that the Russian government interfered in the 2016 election, hacked the Democrats, and tried to give his campaign a political boost.
Mueller called this out in the report. He noted that despite public pronouncements from US intelligence agencies, Trump claimed they had "no idea if it's Russia" who did the hacking. The report concludes, once and for all, that Russia meddled "in sweeping and systematic fashion."

Trump has publicly questioned or dismissed these conclusions about Russian hacking many times -- even at the Helsinki summit, standing alongside Russian President Vladimir Putin.
The report also describes how Jerome Corsi, a conservative author and conspiracy theorist with ties to Trump's orbit, provided bad information in his interviews with investigators. (Mueller said he "found little corroboration" for Corsi's claims about what he did on the day that the "Access Hollywood" tape came out, showing Trump speaking vulgarly about women.) Last year, Corsi said Mueller offered him a plea deal for lying, yet he says he rejected that deal, has maintained his innocence, and wasn't charged by Mueller.

Trump and his allies have danced around the question of Russian meddling for two-plus years. They've downplayed and obfuscated the impact of the Russian operation, and cozied up with WikiLeaks, the anti-secrecy group that published many of the hacked Democratic messages. The report puts to rest any questions about the major role Russia played in the 2016 election.

Other odds and ends

The Mueller report also documents a lie about hush money payments made to women alleging they'd had affairs with Trump, as well as a false statement to the public about former Trump campaign adviser Carter Page.

In one instance that Mueller cited, Cohen told the public in February 2018 that Trump was not "a party to" the hush money payments. Yet Cohen had discussed them with Trump.
These false claims became part of Cohen's guilty plea in 2018 for related crimes in a case brought by federal prosecutors in New York.

In another example of a lie in a moment of scrutiny, Mueller wrote that the Trump campaign told journalists that Carter Page had "no role" in their organization. The date was September 23, 2016, and Yahoo! News had reported that Page was under investigation for communicating with senior Russian officials about US policy. That same day, campaign staff members Jason Miller, Steve Bannon and Stephen Miller discussed over email plans to remove Page from the campaign, Mueller noted, and he was removed the next day.

#Resist

[Athos_131]

Special Counsel Mueller’s letter to Attorney General Barr



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[Athos_131]

Five questions for William Barr, in light of new Mueller revelations

Attorney General William P. Barr is set to face two days of grilling by congressional Democrats. Fortuitously, this comes just after we’ve learned that special counsel Robert S. Mueller III privately criticized Barr’s highly misleading summary of the Mueller report, which gave President Trump weeks to falsely spin Mueller’s findings as “complete and total exoneration.”

Mueller wrote a letter to Barr only three days after Barr released his four-page summary, as The Post reports, complaining that Barr’s summary “did not fully capture the context, nature, and substance of this office’s work and conclusions.”

“There is now public confusion about critical aspects of the results of our investigation,” Mueller continued, adding that this will undercut “full public confidence” in the investigation’s findings, thus undermining a “central purpose” of the appointment of a special counsel in the first place.

Upon reading the phrase “public confusion,” Barr probably nodded with satisfaction, and said to himself: Mission accomplished.

Here are a few lines of questioning Barr will likely face when he is questioned by the Senate and House judiciary committees on Wednesday and Thursday:

Why did Barr mislead Congress about Mueller’s views on the Barr summary?

In early April, Mueller’s team leaked their frustration over Barr’s summary, complaining it downplayed their conclusions, particularly on Trump’s obstruction of justice. At a congressional hearing soon after, Barr was pressed to say whether he knew what was behind those leaks, and replied: “No, I don’t.”

In fact, we now know Barr had been informed directly by Mueller of the latter’s concerns, well before this hearing.

“That was deliberately false and misleading,” Rep. Adam Schiff (D-Calif.) told CBS News, noting: “What Barr is going to have to explain today is why he misled the Congress.”

Why did Barr adopt Trump’s talking points at his news conference?

At his presser just before releasing the Mueller report, Barr said repeatedly that there was “no collusion” between the Trump campaign and Russian interference in the election.

In fact, Mueller’s report explicitly declares that the investigation did not treat “collusion” as a legally meaningful term. While it did not establish a criminal conspiracy, it outlined extensive evidence that Trump campaign officials knew about and welcomed Russian help, actively tried to coordinate with it, and lied (something Trump himself did) to cover that up.

Given all that, what could Barr’s purpose have been in repeating the “no collusion” canard, other than misleading the public about the gravity of what Mueller actually found?

Sen. Richard Blumenthal (D-Conn.), who will question Barr as a member of the Judiciary Committee, told me that this is a key line of questioning.

“This will take several questions,” Blumenthal said. “Collusion is not a crime, is it? Mueller makes that point, doesn’t he? Mueller lays out evidence of the Trump campaign happily accepting and welcoming stolen and hacked materials from the Russians, knowing their origin, doesn’t he?”

Barr will have to explain why he “misled the American people” when he “doubled down on his essentially distorted version of Mueller’s findings in the press conference,” Blumenthal told me.

Why did Barr mislead on obstruction in a way that dismayed Mueller?

Mueller outlined extensive examples of Trump impeding the investigation in a way that plainly amounted to obstruction of justice. In some cases -- such as Trump’s efforts to get his then-White House counsel to remove Mueller and then lie to cover it up, and Trump’s attempt to get his former attorney general to gut the investigation -- Mueller actively declared that Trump had met the standard of corrupt intent.

But Barr’s summary letter was misleading on obstruction in multiple ways.

Barr’s letter said Mueller declined to reach a prosecution decision without indicating that this was due to Department of Justice policy. Barr took Mueller’s words out of context to submerge Mueller’s conclusion that Trump had extensive motive to corruptly impede the investigation. And Barr supplied none of the evidence Mueller amassed of obstruction, making it impossible to evaluate his (Barr’s) decision to step in and declare that Trump’s conduct did not rise to criminality.

What’s more, we now know that Mueller told Barr in a private conversation that his “main worry was that the public was not getting an accurate understanding of the obstruction investigation,” as The Post puts it.

“The whole point of the special counsel regulations was to provide public confidence in the administration of justice,” Neal Katyal, the former deputy solicitor general who helped draft those regulations, told me, adding that Barr’s letter undercut that confidence. We now know Mueller agrees.

All of this, of course, raises other questions Barr will have to face, about how Barr actually reached the conclusion that Trump did not commit criminal obstruction of justice. We know that Barr got the job in part because he declared in an unsolicited memo that presidents cannot commit obstruction by definition.

Is that legal theory what drove Barr’s decision? If not, what was the justification for clearing Trump, in light of Mueller’s conclusion that Trump repeatedly did meet the standard for criminality?

And when will we hear from Mueller?

One thing that’s striking about the latest reports is how concerned Mueller is about public impressions of the investigation. His letter to Barr lamented “public confusion” and its threat to “full public confidence” in the probe’s conclusions. When will DOJ allow Mueller to testify to all these things himself?

If anything, all the latest revelations compound the sense that Barr has been acting more as Trump’s personal advocate, attorney, and press flack than as the country’s attorney general. Hopefully that will now be exposed to the public more vividly.

#Resist

[Athos_131]

Julian Assange Sentenced to 50 Weeks and Still Faces U.S. Charges

LONDON — A British court sentenced Julian Assange, the WikiLeaks founder, to 50 weeks in prison on Wednesday for jumping bail when he took refuge in Ecuador’s Embassy in London seven years ago.

His complex legal travails are far from over: The United States is seeking Mr. Assange’s extradition for prosecution there, and an initial hearing on that request is expected on Thursday. Officials in Sweden have left open the possibility that he could face criminal charges in that country, as well.

Mr. Assange faces a charge of conspiracy to hack into a Pentagon computer network; a federal indictment accuses him of helping an Army private to illegally download classified information in 2010, much of it about the wars in Iraq and Afghanistan, which WikiLeaks then made public. He has denied the charge.

Mr. Assange, 47, was arrested on April 11 after the Ecuadorean government withdrew its protection of him and allowed the police to take him out of the embassy in London, where he had lived since 2012. The same day, he appeared in court and was convicted on the charge of skipping bail.

Mr. Assange argued that he should not be jailed for the offense, because he was effectively imprisoned in the embassy. On Wednesday, in Southwark Crown Court in London, Judge Deborah Taylor rejected that claim.

“It’s difficult to envisage a more serious example of this offense,” she told Mr. Assange, British news organizations reported. “By hiding in the embassy you deliberately put yourself out of reach, while remaining in the U.K.”

Before he was sentenced, the court heard an apology letter by Mr. Assange, in which he said that he was “struggling with difficult circumstances.”

“I did what I thought at the time was the best or perhaps the only thing that I could have done,” he said, according to British news reports. “I regret the course that that has taken.”

His legal odyssey began in 2010, when prosecutors in Sweden sought to question him about alleged sexual assaults there, which he denies. Eventually, he had to post bail to remain free while fighting extradition to Sweden, which he insisted would then send him to the United States.

After exhausting his appeals in the British courts, rather than submit to extradition, Mr. Assange took refuge in Ecuador’s embassy, violating the terms of his bail. Ecuador granted him asylum and, eventually, citizenship.

He continued his work from the embassy, and in 2016, WikiLeaks released thousands of emails hacked from the Democratic National Committee and the personal account of John D. Podesta, the chairman of Hillary Clinton’s campaign, intending to harm her candidacy. The special counsel, Robert S. Mueller III, concluded that the emails were stolen by Russian intelligence agents, which Mr. Assange denies.

The 2010 release of Pentagon records was made possible by Chelsea Manning, then known as Bradley Manning, the Army private who would later serve around seven years in prison for taking them. The indictment against Mr. Assange says he did not merely publish the material provided by Ms. Manning, but helped her in the hacking, which he disputes.

Mr. Assange insists that the government is seeking retribution for his exposure of misconduct and deception by American troops and officials.

Swedish prosecutors eventually dropped the case against Mr. Assange, calling it pointless to pursue it, but said they could revive it if he became available. Nevertheless the bail-jumping charge, and the threat of extradition to the United States, still hung over him.

Last month, Ecuador revoked his asylum and citizenship, citing a list of grievances that had made him an unwanted house guest, ranging from recent WikiLeaks releases to alleged ill manners, threats, hacking aimed at Ecuador, and abuse of embassy staff members and facilities.

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Ecuador stopped sheltering Mr. Assange after “his repeated violations to international conventions and daily-life protocols,” President Lenin Moreno said in a statement on Twitter.

But Mr. Assange didn’t go easily: He resisted arrest and had to be restrained by British police officers, who struggled to handcuff him.

“This is unlawful, I’m not leaving,” he told them, according to the account given at the Westminster Magistrates Court, where Mr. Assange appeared later that day. In the end, he had to be dragged out of the embassy.

Mr. Assange, a man accustomed to celebrity and internet culture, has long fascinated and divided popular opinion: To supporters, he is a martyr for the cause of free speech, but others see him as a publicity-seeking criminal with strong ties to the Kremlin.

He has indicated that he would fight extradition, and the process promises to be a long one, further extending his saga.

#Resist

[Athos_131]

‘I don’t know’: Barr’s professed ignorance prompts calls for his resignation after Mueller letter

In back-to-back congressional hearings on April 9 and 10, Attorney General William P. Barr disclaimed knowledge of the thinking of special counsel Robert S. Mueller III and members of his team of prosecutors investigating Russian interference in the 2016 election.

“No, I don’t,” Barr said, when asked by Rep. Charlie Crist (D-Fla.) whether he knew what was behind reports that members of Mueller’s team were frustrated by the attorney general’s summary of their top-level conclusions.

“I don’t know,” he said the next day, when asked by Sen. Chris Van Hollen (D-Md.) whether Mueller supported his finding that there was not sufficient evidence to conclude that President Trump had obstructed justice.

These statements resurfaced Tuesday following the revelation that Mueller had sent a letter to Barr two weeks earlier objecting to the attorney general’s characterization of the probe.

Suggesting that Mueller’s letter — only portions of which have been made public — belied the sworn testimony of the attorney general, Van Hollen recirculated a clip of his back-and-forth with Barr and declared, “He must resign.”

In an interview with The Washington Post, the Maryland Democrat said he believed Barr’s answer was “completely misleading because he was well aware of the fact that Bob Mueller had raised questions with the substance of the conclusions stated in the attorney general’s letter.”

The Justice Department didn’t immediately return a request for comment on Van Hollen’s accusation.

In the March 27 letter, Mueller protested that Barr’s four-page memo “did not fully capture the context, nature, and substance” of his work, according to a copy reviewed by The Post. In a subsequent phone conversation between Mueller and Barr — longtime colleagues whose differences of opinion about the handling of the Russia probe are beginning to spill into the open — the special counsel expressed concern about public misunderstanding of the obstruction component of the investigation.

According to Justice Department officials, Mueller indicated in the conversation that he did not find fault with the accuracy of the memo but rather with conclusions drawn in media coverage.

Though he had not examined the entire letter, Van Hollen allowed, “Based on what I’ve seen, it’s clear to me that what Attorney General Barr told me is totally inconsistent with what he knew at the time.”

He said he hoped his colleagues on the Senate Judiciary Committee, who were preparing to question Barr on Wednesday, would press the attorney general on what he knew about the special counsel’s frustrations, and how that knowledge squared with his sworn testimony in early April. Wednesday’s hearing will be Barr’s first appearance before lawmakers since Mueller’s partially redacted report was released on April 18.

In a prepared statement for the committee, Barr defended his handling of the special counsel’s investigation.

“As Attorney General, I serve as the chief law-enforcement officer of the United States, and it is my responsibility to ensure that the Department carries out its law-enforcement functions appropriately,” he wrote. “The Special Counsel’s investigation was no exception.”

Democrats view his conduct differently. Central to their objections has been the news conference in which Barr previewed the report’s release and echoed the president’s defense, saying there was no collusion and no obstruction case that could be prosecuted.

The disclosure of Mueller’s March letter provided fresh ammunition.

Van Hollen labeled Barr’s profession of ignorance about the special counsel’s position “the most recent example of the attorney general acting as the chief propagandist for the Trump administration instead of answering questions in a straightforward and objective manner.”

“You now have a pattern of misleading conduct from the attorney general,” Van Hollen added. “His bluntly misleading answer to my question is part of that.”

Still, the lawmaker stopped short of concluding that Barr had lied to him, saying he needed to review the full letter. And, in a sign of broader reluctance among some Democrats about embarking on an impeachment process, he said, “The House has so many questions before it. And they of course have to decide how to prioritize all of the issues facing them.”

Rep. Jerrold Nadler (D-N.Y.), who has authority over impeachment questions as chairman of the House Judiciary Committee, also made a point Tuesday night of recalling the exchange between Barr and Van Hollen.

Beyond Capitol Hill, some of the president’s critics were quick to conclude that the attorney general should be removed, with some suggesting that he had committed perjury.

At least one presidential candidate, Julián Castro, a former housing secretary for the Obama administration, said the attorney general should step down or face impeachment. A number of prominent figures reached the same verdict. They ranged from Democratic stalwarts, such as former Obama aide Dan Pfeiffer, to disaffected Republican operatives, such as John Weaver, a longtime campaign strategist, including for John Kasich, a rival of Trump’s for the Republican nomination in 2016.

Legal experts, however, were skeptical, noting that the uncertainty surrounding the precise objections raised by the special counsel make it difficult to assess Barr’s candor. So, too, the ambiguity of the language employed by the attorney general, as well as by the lawmakers questioning him, would likely shield him from a perjury charge, said Jennifer Levinson, a professor at Loyola Law School in Los Angeles. Federal law makes it a criminal offense to speak falsely about a material matter while under oath, and to do so knowingly and willfully.

“He’s tiptoeing, dancing and threading the needle all at once around perjury, but I don’t think he ever actually steps into the land of perjury,” Levinson said. “We’re talking about a very skilled attorney who purposely used vague enough language.”

Barr’s answer to Crist came in a hearing of a House Appropriations subcommittee. The Florida Democrat asked the attorney general about news reports that investigators working on the special counsel’s probe were disturbed by his conduct.

“Reports have emerged recently, general, that members of the special counsel’s team are frustrated at some level with the limited information included in your March 24th letter, that it does not adequately or accurately necessarily portray the report’s findings,” he said. “Do you know what they’re referencing with that?”

The attorney general said he could only speculate.

“No, I don’t,” Barr replied. “I think — I think — I suspect that they probably wanted more put out, but in my view, I was not interested in putting out summaries or trying to summarize, because I think any summary, regardless of who prepares it, not only runs the risk of, you know, being underinclusive or overinclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out at once.”

The following day, in a hearing of the Senate Appropriations Committee, Van Hollen asked Barr to explain his finding that there was insufficient evidence to bring obstruction charges against the president — a finding, the lawmaker said, that allowed Trump to claim exoneration.

“It was the conclusion of a number of people, including me and I obviously am the attorney general,” Barr said. “It was also the conclusion of Deputy Attorney General Rod Rosenstein.” Van Hollen said he understood, and, as Barr pledged to elaborate on his conclusion once the report was released, the senator asked, “Did Bob Mueller support your conclusion?”

Barr was ambiguous, offering, “I don’t know whether Bob Mueller supported my conclusion.”

Neither does the public. It remains unclear whether Mueller will testify before Congress, and on what terms.

But Van Hollen claims that Barr faced no such uncertainty. “When the attorney general answered that question, he had full knowledge of the letter from Mueller, in which Mueller expressly stated that he did not capture the substance of Mueller’s conclusions,” the first-term senator said.

Absent a clear legal infraction, the contest over Barr’s handling of the special counsel’s report will continue to unfold as a pitched partisan battle, said Levinson, the law professor.

The latest revelation, she said, gave Democrats a chance to claim politically popular ground. That would be an unfamiliar scenario, she added, as, “up to now, the attorney general has been very smart at controlling the narrative, dominating the new cycle at the most important moments.”

#Resist

[Athos_131]

5 takeaways from William Barr’s tense hearing

ttorney General William P. Barr ventured up to Capitol Hill on Wednesday an embattled man. About 15 hours before his testimony, The Washington Post reported that special counsel Robert S. Mueller III had sent Barr a letter saying Barr’s summary of his report “did not fully capture the context, nature, and substance of this office’s work and conclusion.” Mueller asked Barr to release a fuller summary he provided; Barr did not do so.

It’s hardly the first time that Barr has run into trouble in recent weeks. And that made his testimony to the Senate Judiciary Committee on Wednesday a tense affair.

[Special Counsel Mueller’s letter to Attorney General Barr]

Below are highlights and lessons from the hearing. We’ll update throughout the day.

1) Barr is unrepentant -- and still presenting things favorably to Trump
If you thought Barr might bend to criticism that he had been too favorable to Trump and change his approach, you’d be wrong. And one exchange encapsulated it.

The committee’s top Democrat, Sen. Dianne Feinstein (Calif.), began by questioning Barr about one of the key events in the obstruction portion of the special counsel’s probe: Trump trying to get then-White House counsel Donald McGahn to dispute media reports that Trump had tried to get McGahn to fire Mueller.

Barr suggested that the initial New York Times report on the event had gone further than the evidence, by saying Trump explicitly “directed” McGahn to have Mueller fired. But the Mueller report concludes that Trump did: “Substantial evidence . . . supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

Barr also suggested that it was possible Trump’s actions weren’t obstructive because “he was primarily concerned about press reports” -- not impacting the investigation. Again, the Mueller report appears pretty clear on this point. It says Trump’s continued efforts to change McGahn’s account long after the story published "indicates the President was not focused solely on a press strategy but instead likely contemplated the ongoing investigation and any proceedings arising from it.”

Throughout his testimony, Barr repeated many of the same arguments and comments that have landed him in hot water in the first place, and he again leaned into the idea that the Russia investigation might have been improperly launched — as Trump has argued. Asked by Senate Judiciary Committee Chairman Lindsey O. Graham (R-S.C.) whether he shared “my concerns about the counterintelligence probe and how it was started,” Barr responded, “Yes.”

Barr also said he shared Graham’s concerns about the FISA (Foreign Intelligence Surveillance Act) process and stood by his controversial past use of “spying” to describe how former Trump campaign aide Carter Page was monitored. “I don’t think the word ‘spying’ has any pejorative connotation at all,” Barr said. “I’m not going to back off the word ‘spying.' "

(The first definition of “spy” in Merriam-Webster’s dictionary is “to watch secretly usually for hostile purposes.”)

2) ‘I didn’t exonerate’ Trump
Despite Barr’s posture generally favoring Trump when it came to legal questions, there were a couple moments in which he disputed key Trump talking points.

One of them came when Barr made clear he didn’t view his decision not to accuse Trump of obstruction of justice as the “complete and total exoneration” that Trump claims.

“I didn’t exonerate," Barr said. "I said that we didn’t believe that there was sufficient evidence to establish an obstruction offense.”

That’s a key distinction, because it allows for the possibility that Trump did obstruct justice -- just that as a prosecutor he wouldn’t have recommended charging the crime, based on the evidence.

3) His allegedly misleading previous testimony
In addition rebuking Barr, Mueller’s letter also called into question his past testimony. Barr testified before the House last month — after receiving the letter — and suggested he wasn’t familiar with how the Mueller team perceived his actions.

When asked whether he knew what was behind reports that members of the Mueller team were unhappy with his summary, Barr said, “No, I don’t.”

Barr explained Wednesday that he was narrowly answering the question: “I don’t know what members he’s talking about, and I certainly am not aware of any challenge to the accuracy of the findings. . . . I talked directly to Bob Mueller — not members of his team.”

Barr repeatedly returned to how Mueller told him that his letter summarizing the report wasn’t inaccurate. But that’s not really the issue. The issue is whether it cherry-picked from the Mueller report and excluded key details. Mueller implied strongly that Barr had misled and excluded important information. And in his past testimony Barr suggested that he wasn’t familiar with anyone on Mueller’s team being upset.

4) A rift with Mueller?
Barr and Mueller are reported to be friends, but a few comments suggested there might be some tension between them. Barr suggested that Mueller could have prevented the confusion in the first place.

“I offered Bob Mueller the opportunity to review that letter before it came out,” Barr said, “and he declined.”

Barr’s intent might have been more to suggest that he did his due diligence in releasing the letter — rather than that Mueller did anything wrong. But it sure sounded as if he was saying Mueller could have spoken up sooner.

Barr also suggested later that Mueller’s opinions don’t really matter, because he serves in the Department of Justice and reports to the attorney general. He likened Mueller to a “U.S. attorney” in the DOJ’s pecking order.

“His work concluded when he submitted the report to the attorney general. At that point, it was my baby,” Barr said. “It was my decision how and when to make it public — not Bob Mueller’s.”

Later in the hearing, Barr called Mueller’s letter “a bit snitty” and suggested Mueller didn’t write it himself. He also said when he spoke with Mueller after the letter, he told him, “Bob, what’s with the letter? Why don’t you just pick up the phone and call me if there’s an issue?”

Barr, of course, knows why Mueller wrote it. He wanted a record.

5) Graham’s misleading preamble
Graham has turned into one of Trump’s most loyal allies on Capitol Hill. And true to form, he started the hearing on a very pro-Trump foot.

Except many of his claims were misleading.

Graham said the Mueller report had stated there was “no collusion.” In fact, the report ruled more narrowly that there was no “conspiracy” and explicitly said it wasn’t evaluating the broader concept of collusion, because it isn’t a legal term.

Graham said, “As to obstruction of justice, Mr. Mueller left it to Mr. Barr to decide.” In fact, Mueller didn’t ask Barr to make a decision on obstruction (as Barr himself has said) nor did Barr need to make the call. Mueller made clear in his report that he didn’t think it was the Justice Department’s job to accuse a sitting president of crimes, since a sitting president can’t be indicted.

And, finally, Graham suggested Barr’s previews of the Mueller report, both in his letter and in a news conference just ahead of the report’s release, didn’t really matter. “Here’s the good news,” Graham told everyone. “You can read the report.” But Barr in many ways pre-spun the report — to the extent that members of Mueller’s team and Mueller himself were clearly concerned. And setting the first narrative matters.

Graham hailed Mueller as a public servant, but he did not dwell upon Mueller’s concerns about Barr’s handling of the matter.

#Resist

[Athos_131]

William Barr torched his reputation. His testimony compounded the damage.

ATTORNEY GENERAL William P. Barr entered office with more credibility than many Trump appointees. A veteran of the George H.W. Bush administration, Mr. Barr avowed loyalty to the Justice Department’s mission and, nearing the end of his career, seemed to have little incentive to serve as another Trump sycophant. Yet Mr. Barr has lit his reputation on fire, and he just added more fuel in his Wednesday testimony before a Senate panel.

Much of the hearing centered on the attorney general’s decision to release a highly misleading representation of the findings of special counsel Robert S. Mueller III’s Russia investigation. In particular, Mr. Barr failed to acknowledge the alarming nature of Mr. Mueller’s analysis on whether President Trump obstructed justice, and he did not explain why the special counsel declined to say whether Mr. Trump was guilty of the charge. This really matters: Given the damning account in Mr. Mueller’s report, what appeared to be keeping the special counsel from accusing the president of criminal acts was not the lack of evidence but the fact that the president cannot be charged under Justice Department rules.

Mr. Barr defended himself Wednesday by insisting that his memo, publicized weeks before he released any additional material, was technically accurate, despite the fact that his spin deeply affected the reception of Mr. Mueller’s full report when the public finally got it. It was not supposed to be a full summary of the special counsel’s report, he insisted — just a brief explanation of the top-line conclusions. Mr. Barr’s long history in Washington belies his argument: He should have known how his pre-spinning of the Mueller report would distort the truth of the special counsel’s damning findings, to the president’s benefit. He did it anyway.

The Post revealed Tuesday that, shortly after Mr. Barr released his memo, Mr. Mueller sent a letter to the attorney general, objecting that the memo “did not fully capture the context, nature, and substance” of the special counsel’s report. Mr. Barr did not mention this letter when he told members of Congress last month that he had no knowledge of any frustration on the part of Mr. Mueller’s staff. In other words, after releasing a spin job on the Mueller report, he misled Congress on whether the special counsel was unhappy about it.

On this and other matters, Mr. Barr has cited personal conversations with Mr. Mueller to defend his actions. According to Mr. Barr, the special counsel was more unhappy with the press coverage of the attorney general’s memo than with the memo itself. Mr. Barr also insisted that Mr. Mueller said that Justice Department policy on charging sitting presidents did not determine his decision on accusing Mr. Trump of a crime — even though that was a key consideration in the analysis Mr. Mueller included in his report.

It is long past time the public stopped hearing Mr. Barr’s views on how Mr. Mueller feels, and heard from the special counsel himself. The Justice Department should enable Mr. Mueller to speak publicly and under oath at the earliest opportunity. The special counsel should address not only his substantive findings on the president’s misbehavior but also the attorney general’s manipulation of his work. Not just Mr. Trump should be held accountable for his actions. So should his attorney general.

#Resist

[Athos_131]

Barr’s conclusions are undercut by his lack of familiarity with details of Mueller’s probe

On several occasions, Attorney General William P. Barr has been assertive. The investigation led by special counsel Robert S. Mueller III, he declared in a four-page letter March 24, didn’t find that President Trump’s 2016 campaign coordinated with Russia’s efforts to influence that election. What’s more, he and Deputy Attorney General Rod J. Rosenstein had looked at Mueller’s report and determined that Trump hadn’t provably violated obstruction of justice statutes.

In a news conference April 18, shortly before the report was made public, Barr was more adamant: There was no collusion between Trump’s team and Russia, and not only was there not criminal obstruction, but also the anger displayed by Trump that could be interpreted as obstruction was warranted, given the frustrating circumstances Trump faced.

Barr has stepped forward as the seemingly objective face of the case Trump has been making since May 2017: that Trump did nothing wrong. But Barr’s ability to play that role effectively has eroded over time, both with the revelation that Mueller took issue with his March 24 letter and, Wednesday, under questioning about the report by Democrats on the Senate Judiciary Committee.

Over the course of that questioning, Barr admitted he hadn’t reviewed the evidence underlying Mueller’s findings on obstruction, he hadn’t looked at the evidence undergirding the origination of the probe into possible coordination and, at one point, even made a comment raising questions about his familiarity with one of the key issues at the heart of the probe.

It was Sen. Kamala D. Harris (D-Calif.) who drew the most significant blood.

“The special counsel’s investigation produced a great deal of evidence,” she said. “I’m led to believe it included witnesses’ notes and emails, witnesses’ congressional testimony, witnesses’ interviews which were summarized in the FBI 302 forms, former FBI director [James B. ] Comey’s memos and the president’s public statements.

“My question is,” she continued, “in reaching your conclusion, did you personally review all of the underlying evidence?”

“No, we took — we accepted — ” Barr said.

“Did Mr. Rosenstein?” Harris interjected.

“We accepted the statements in the report as the factual record,” Barr said. “We did not go underneath it to see whether or not they were accurate, we accepted it as accurate. It made our — ”

“So you accepted the report as the evidence?” Harris asked. Yes, Barr replied.

“You did not question or look at the underlying evidence that supports the conclusions in the report?” she asked. No, he said, nor did Rosenstein, to his knowledge.

Harris appeared to marvel at his response.

“Yet you represented to the American public that the evidence was not, quote, ‘sufficient to support an obstruction of justice offense,’ ” she said.

“The evidence in the report,” Barr said.

A short while later, that lack of familiarity with the underlying evidence became important during questioning by Sen. Richard J. Durbin (D-Ill.).

Durbin outlined the evidence that was already known to the FBI in July 2016 when it opened a counterintelligence investigation into possible coordination between Trump’s campaign and Russia. That Russia had hacked the Democratic National Committee. That a Trump aide named George Papadopoulos had been informed in April that Russia had incriminating emails on Clinton. That the aide in May told an Australian diplomat named Alexander Downer. And that, in late July, material stolen from the DNC was dumped by WikiLeaks. (It was this dump that prompted Australia to inform the FBI about Papadopoulos’s earlier comments.)

“Do you believe that it was an appropriate predicate,” Durbin asked, “for opening a counterintelligence investigation to determine whether Russia had targeted people on the Trump campaign to offer hacked information that might impact the presidential election?”

Barr said: “I’d have to see exactly what the report was from Downer, the Australian, Downer, and exactly what he quoted Papadopoulos as saying. But from what you just read, I’m not sure what the correlation was between the Russians having dirt and jumping to the conclusion that that suggested foreknowledge of the hacking.”

By itself, that’s a remarkable admission: that Barr wasn’t familiar with what precisely Downer had said about the tip that kicked off the entire probe. But it also undercut an earlier exchange Barr had with Sen. Lindsey O. Graham (R-S.C.), the chairman of the committee, who had worked at the outset to build a protective scaffolding around Trump by suggesting nefarious behavior on the part of Democrats and the Obama administration.

“Do you share my concerns about the counterintelligence investigation,” Graham said, hoping to raise questions about the validity of the probe overall, “how it was opened and why it was opened?”

“Yes,” Barr replied — though his concerns about the origin of the investigation didn’t extend so far as to read what Downer had said about what Papadopoulos told him.

Shortly before Harris questioned Barr, Sen. Cory Booker (D-N.J.) had an opportunity to do so. He focused on what he described as Barr’s willingness to brush off as unimportant activity that may have been legal but which, in Booker’s eyes, was at least morally questionable.

“In our country, we know it is illegal for a campaign and wrong for a campaign to share polling data with an American super PAC,” Booker said, “but we have here, documented, a level of coordination with a foreign adversary sharing polling data, and we seem to be, and your conduct seems to be, trying to normalize that behavior.”

It’s true that a campaign can’t share polling information with a political action committee that’s running independent expenditures on its behalf. What Booker was referring to was a number of occasions in which Paul Manafort — at the time Trump’s campaign chairman — had shared polling data from the campaign with his colleague Konstantin Kilimnik, a Ukrainian believed by the FBI to be linked to Russian intelligence.

“We right now have a new normal in our country,” Booker said later. “We have a document that shows over 200 connections between a presidential campaign and a foreign adversary. Sharing information that would be illegal if you shared it with a super PAC, we know that.”

“What information was shared?” Barr asked.

“Polling data was shared, sir,” Booker replied. “It’s in the report; I can cite you the page.”

“With who?” Barr responded.

Booker continued with his questioning.

The polling data issue wasn’t just an incidental event. One attorney on Mueller’s team told a federal judge this year that the sharing of that data got “very much to the heart of what the special counsel’s office is investigating.”

Why? Well, it’s a Trump campaign staffer deliberately offering proprietary information to someone that is probably linked to Russia’s intelligence service — which was at the time actively trying to interfere in the election. Manafort probably knew about Kilimnik’s ties; while he denied to Mueller’s team that Kilimnik was linked to the government, his deputy, Rick Gates, said he suspected that Kilimnik was a spy, an opinion he had shared with Manafort.

It’s probable (but not certain) that Barr wasn’t unfamiliar with the exchange but, instead, trying to make a point to Booker. That it’s not clear whether Kilimnik then passed the information to the Russian government is important. If Manafort was sharing poll data with a colleague to, say, use as leverage with former business partners to make a buck, that’s not something that gets at the heart of what Mueller was looking at.

But even if that were the direction in which Barr was headed, it’s a problematic case to make. Mueller was pointed in noting in the report that questions about the purpose of sharing the data remains unclear.

"Because of questions about Manafort’s credibility and our limited ability to gather evidence on what happened to the polling data after it was sent to Kilimnik,” the report states, “the Office could not assess what Kilimnik (or others he may have given it to) did with it.”

This is an important subtext to everything that Barr has said about the report. On a number of points, Mueller wasn’t able to answer the questions he was asked, for a variety of reasons. (Including, we’ll note, that his only contact with Trump himself was written questions that mostly elicited answers of “I don’t recall.”)

That bit of nuance never made it into Barr’s descriptions of Mueller’s work. Nor, we learned Wednesday, did Barr at any point try to dive any deeper than what Mueller laid on his desk.

#Resist

[Athos_131]

William Barr’s ‘snitty’ slip-up gives away his game

Attorney General William P. Barr appeared before Congress on Wednesday having been accused of misleading about and pre-spinning the Mueller report for President Trump. He also came on the heels of a newly reported letter in which Robert S. Mueller III rebuked Barr’s handling of the matter.

So it should come as no surprise that he misled about and spun Mueller’s letter, too. The difference this time was that he accidentally gave away his game.

From the start of the hearing, Barr emphasized two talking points about the letter:

1. That Mueller later told him nothing was inaccurate in Barr’s summary of the Mueller report’s principal conclusions

2. That Mueller was concerned about news coverage

“I asked him if he was suggesting that the March 24 letter was inaccurate, and he said no, but that the press reporting had been inaccurate,” Barr said at one point. He emphasized at another point that he asked Mueller whether the letter was inaccurate. “He indicated that it was not,” Barr said. “He was not saying that and that what he was concerned about” were news reports.

The suggestion is that Mueller wasn’t really upset with Barr at all but was, instead, angry with how the media was handling the matter.

But Mueller’s letter paints a very different picture. It places the onus for misperceptions of his report squarely on Barr.

"The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this office’s work and conclusions,” Mueller wrote. “There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”

That draws a direct line between Barr’s disclosures and the news coverage. Barr’s insistence that the letter was not inaccurate is a red herring. Something can be strictly accurate but also be wholly misleading and cherry-picked, and Mueller clearly viewed Barr’s letter as misleading. This wasn’t about how the news media was getting something wrong; it was about how Barr’s letter led it to get things wrong.

And it took awhile, but Barr eventually seemed to acknowledge that Mueller had, in fact, rebuked him.

Toward the end of the hearing, Sen. Richard Blumenthal (D-Conn.) pressed him on his portrayal of Mueller’s letter. Barr then recounted his conversation with Mueller on the phone after Mueller sent the letter. He said he told Mueller: “Bob, what’s with the letter? Why don’t you just pick up the phone and call me if there’s an issue?”

Barr then added: “The letter’s a bit snitty, and I think it was written by one of his staff people.”

But if the letter wasn’t really criticizing Barr, then why would he be taken aback at it and ask why Mueller wrote it? (Side note: Barr knows why Mueller wrote it: to create a record.) And if this was mostly about news coverage, why call the letter “snitty”? Barr seemed to be admitting, finally, that the letter was what it was: a diplomatically worded but pretty direct rebuke of him and his actions.

The parsing of the letter is really a microcosm of the entire Barr imbroglio. The things he was saying were technically true (at least as far as we know), but focusing on them distracted from the real issue. Similarly, it’s not that Barr necessarily lied about anything in the Mueller report but that he cherry-picked what he disclosed to create a narrative unduly favorable to President Trump. Rather than making it clear that Mueller had decided it wasn’t his place to accuse Trump of obstruction of justice, for instance, Barr simply said that he hadn’t done so. That left some with the impression maybe Mueller viewed the evidence as inconclusive.

Barr largely danced around his differences with Mueller earlier in the hearing, but by the end, it was clear that this was about as contentious a situation as it seemed. If only Barr had provided that fuller picture from the beginning.

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Barr’s refusal to testify before House panel increases likelihood of contempt citation from Congress

Attorney General William P. Barr told a House panel on Wednesday that he will not testify about special counsel Robert S. Mueller III’s report, raising the prospect that Democrats will hold the nation’s top law enforcement official in contempt of Congress.

Barr, who also missed a deadline for subpoenaed information on Wednesday, had been scheduled to testify before the House Judiciary Committee on Thursday about his handling of Mueller’s report on Russian interference in the 2016 presidential election. But Barr balked at the committee’s plan to have a committee counsel question him alongside lawmakers, a snub that angered Democrats.

“When push comes to shove, the administration cannot dictate the terms of our hearing in our hearing room,” Rep. Jerrold Nadler (D-N.Y.), chairman of the committee, told reporters. He said the panel would meet as planned and added “I hope and expect that the attorney general will think overnight and will be there as well.”

Nadler said that he would give Barr a “day or two” to turn over the full, unredacted Mueller report in accordance with the committee’s subpoena, information that was due Wednesday morning. But the chairman warned that “if good faith negotiations don’t result in a pledge of compliance . . . the next step is seeking a contempt citation against the attorney general.”

The attorney general’s refusal to appear escalates an already contentious fight between President Trump and House Democrats over Congress’s oversight role. Trump has vowed to fight subpoenas from Democrats, sued to block compliance by accounting firms and banks and instructed former and current aides to rebuff the repeated requests from Capitol Hill.

Congressional Republicans blamed Democrats for Barr’s refusal to appear. 

“It’s a shame members of the House Judiciary Committee won’t get the opportunity to hear from Attorney General Barr this Thursday, because Chairman Nadler chose to torpedo our hearing,” said Rep. Douglas A. Collins (R-Ga.), the panel’s top Republican. 

Justice Department spokeswoman Kerri Kupec blamed the cancellation on “unprecedented and unnecessary” conditions demanded by Nadler.

“The attorney general remains happy to engage directly with Members on their questions regarding the report and looks forward to continue working with the committee on their oversight requests,” said Kupec.

The breakdown in talks between the House and Barr followed news that Mueller challenged the attorney general’s handling of the report on Russia interference in the 2016 election. Suggestions that Mueller felt Barr misconstrued his findings reverberated in the House, with Democrats accusing Barr of perjuring himself in testimony to Congress.

In back-to-back congressional hearings in early April, Barr claimed to have no knowledge of Mueller’s concerns with his four-page summary of the report’s findings. But Mueller’s March 27 letter of discontent calls Barr’s testimony into question, Democrats say.

“It seems to me he offered misleading information,” said panel member Rep. Madeleine Dean (D-Pa.). “This is a really grave situation that an attorney general would mislead the public, No. 1, and then mislead members of Congress, No. 2. That's a very grave situation.”

Another panel member Rep. Ted Deutch (D-Fla.) agreed: “My reaction [to the March Mueller letter] was: Why does the attorney general of the United States continue to apparently view his job as the personal attorney of the president rather than the top law enforcement officer in America?”

The issue came up during a House Democratic leadership meeting with chairmen on Wednesday. But leaders have not said how they intend to respond, deferring instead to the Judiciary panel.

Asked whether Barr should resign, as some congressional Democrats and presidential candidates have suggested, House Speaker Nancy Pelosi (D-Calif.) said, “I’ll wait and see what happens tomorrow at the Judiciary Committee, but I do think that his comments don’t even live up to the standard that he must have for an attorney general.”

House Majority Leader Steny H. Hoyer (D-Md.) told reporters Wednesday that Barr’s handling of the Mueller report is a “very serious matter” and that it appeared he made untrue statements to Congress.

“That was not a truthful response,” Hoyer said of Barr’s suggestion that he didn’t know how Mueller felt about his summary. “I think the first effort ought to be to have Barr explain the discrepancy.”

Barr defended his handling of the Mueller report at a Senate Judiciary Committee hearing on Wednesday. He downplayed Mueller’s letter complaining about the characterization of his work as “a bit snitty” and suggested it was most likely written by a member of Mueller’s staff.

In one testy exchange, Barr even suggested that Mueller’s opinion on how he handled the report didn’t matter anyway. “It was my baby,” Barr said.

During a pair of closed-door meetings Tuesday evening and Wednesday morning, Judiciary Democrats had discussed holding Barr in contempt of Congress for ignoring a subpoena and threatening to skip the scheduled hearing. At one point, Rep. Eric Swalwell (D-Calif.) suggested the committee impeach Barr if it subpoenas him for testimony and he refuses to show.

But after a back-and-forth, the panel agreed impeaching Barr would probably distract from their investigations of Trump and that if they were to begin impeachment proceedings against an individual, it would probably be Trump. That’s when the group settled on the tentative contempt plan, officials said.

The debate over how to handle Barr highlights the predicament House Democrats will find themselves in as they consider ways to reprimand him: Do they try to oust Barr for actions they believe are impeachable? Or do they stay focused on Trump, whom they view as the ultimate prize?

“We are now seeing the attorney general engage in obstruction of a congressional subpoena,” said Rep. David N. Cicilline (D-R.I.), a member of the committee.

Cicilline later added that “we cannot tolerate as a country to have the chief law enforcement officer of the United States either boldly misrepresent or provide untruthful testimony to congressional committees.”

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Kamala Harris Sticks the Landing

The presidential bids of Senators Kamala Harris, Amy Klobuchar, and Cory Booker haven’t exactly caught fire yet.

All of them are lagging behind in primary polls, struggling to break through in a race that has, thus far, been dominated by Joe Biden, Bernie Sanders, and the unlikely burst of South Bend Mayor Pete Buttigieg.

But lucky for Harris, Klobuchar, and Booker, they all sit on the Senate Judiciary Committee, a perch that affords them input on major nominations and a high-profile opportunity to participate in Congress’s response to Special Counsel Robert Mueller’s report on Russian interference into the 2016 election and whether President Donald Trump obstructed justice. On Wednesday, that meant they each had a nationally televised moment—seven minutes, to be exact—to question, talk over, or simply beat up on Attorney General William Barr for the benefit of their presidential aspirations.

Yet only Harris really took advantage. The first-term California senator—herself a former attorney general of the nation’s largest state—brought her skills as a prosecutor to bear as she questioned Barr over his handling of Mueller’s report.

As any casual C-SPAN viewer knows, lawmakers rarely make the most of their opportunity to question high-ranking government officials about the decisions they make on behalf of their constituents. Grandstanding is rampant, and politicians often end up using the precious few minutes they’re allotted to make speeches or merely harangue witnesses instead of trying to elicit useful information or advance a policy debate. Some barely get around to asking a question at all.

Klobuchar spent the first half of her seven minutes on Wednesday touting her own legislation, cosponsored with Republican Senator James Lankford of Oklahoma, to boost the security of American elections. She then pivoted to questioning Barr about why he concluded that Trump’s request of White House Counsel Don McGahn to remove Mueller as special counsel did not amount to obstruction of justice. Her performance seemed politically effective; she promoted her own bipartisan efforts on election security while simultaneously asking relevant questions of the attorney general. But Klobuchar broke no new ground, nor did she when she had a few extra minutes toward the end of the hearing.

Booker also began with a big chunk of throat-clearing before he got around to asking Barr a question. He focused on Barr’s statement that the American public should “be grateful” that Mueller could find no evidence that the Trump campaign conspired with Russia to influence the election. Booker took exception to that, pointing to findings by Mueller’s team that Trump’s son Donald Trump Jr. was eager to meet with the Russians, even if he did not criminally conspire with them. But Booker’s line of questioning was hard to follow, and he lost time when he misspoke at one point and said “obstruction” when he meant “collusion.”

“I’m not sure what you’re talking about,” Barr told him. The senator had failed to land a blow.

Harris, by contrast, dispensed with any speechifying. She has said that, as the Democratic nominee, she would “prosecute the case” against the president. And on Wednesday, she set about to prove it. As has been her standard practice with Trump nominees and administration officials, she launched right into her questions as if she were cross-examining a witness. As the most junior Democrat on the committee, she was the last of 10 to question Barr. But she covered terrain that no one else had, and an attorney general whose slipperiness and legalistic hair-splitting had frustrated Democrats for several hours finally appeared to be caught off-guard.

“Attorney General Barr, has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone?” Harris began. “Yes or no?”

Barr briefly stammered.

“Could you repeat the question?” he asked.

Ultimately, the attorney general said no one had directly asked him to open an investigation, but he allowed that the topic had come up. “I’m trying to grapple with the word ‘suggest,’” he told Harris. “I mean, there have been discussions of matters out there that they have not asked me to open an investigation, but ...”

The question was relevant given Trump’s habit of using his Twitter account to demand that Barr’s predecessor, Jeff Sessions, launch inquiries of Hillary Clinton and other Democrats who have criticized him. Her point apparently made, Harris moved on to the Mueller report. She asked the attorney general if he had reviewed the underlying evidence Mueller’s team had compiled before he reached his conclusion that the president would not be charged with a crime.

Barr said that he had not, and neither had Deputy Attorney General Rod Rosenstein, who had previously overseen the Mueller probe after Sessions recused himself. “We accepted the statements in the report as factual record,” he said. “We did not go underneath it to see whether or not they were accurate.”

Harris seemed to anticipate Barr’s answer, and pounced. “As the attorney general of the United States, you run the United States Department of Justice,” she began. “If in any U.S. attorney's office around the country, the head of that office, when being asked to make a critical decision about—in this case—the person who holds the highest office in the land, and whether or not that person committed a crime, would you accept them recommending a charging decision to you, if they had not reviewed the evidence?”

Barr tried to pass the decision off to Mueller, but Harris stopped him. “You made the decision not to charge him,” she declared.

Harris then questioned whether Rosenstein’s involvement in the decision was ethical given that the report documented how he was also a witness in the firing of FBI Director James Comey—an incident Mueller investigated for possible obstruction of justice. She asked Barr whether Rosenstein had been cleared by career officials in the department’s ethics office of potential conflicts of interest. Barr again seemed flustered, at one point turning around to aides to consult on his answer. Rosenstein was cleared of a conflict before Barr’s arrival in February, the attorney general eventually replied.

Soon, Harris’s time was up. She left the hearing soon after and called on Barr to resign. She won raves from Trump critics on Twitter who were frustrated by her Democratic colleagues’ inability to puncture Barr’s legal arguments. By late afternoon, she had sent out a fundraising email to capitalize on her performance.

Granted, Harris’s success on Wednesday was more style than substance; the revelations she elicited from Barr were noteworthy, but they weren’t exactly bombshells that will change Trump’s political fortunes. Nor did her questioning reveal much about what kind of president she’d be compared with Klobuchar or Booker, or any of her other rivals. The job of president is not that of a prosecutor or a senator.

But the crucible of presidential politics is mostly performative; more to the point, it’s a series of performances over many months, where voters can see how candidates handle pressure, how they seize or miss opportunities, how they use their intellect, how they debate and confront opponents. There will be plenty more of them before Democrats make their choice next year, and Barr’s testimony about the Mueller report, in all likelihood, will turn out to be a blip on that long road.

But Harris had seven minutes on Wednesday to show what she could do, and she seemed to make the most of it.

https://twitter.com/WardDPatrick/status/1123743482449924099



She would make Trump shit his pants and eat them in a debate.

Inject it directly into my veins.

#Resist