Friday, April 19, 2019 12:40 pm
Fact check: What Attorney General Barr said vs. what the Mueller report said
SALVADOR RIZZO | Washington Post
Before the special counsel's report on Russia and President Trump was released to the public, Attorney General William Barr made several statements about what was in its 448 pages.
Barr received special counsel Robert Mueller's report last month and outlined its principal conclusions in a letter dated March 24. Barr then held a news conference on Thursday, shortly before releasing a redacted version of Mueller's report.
As it turns out, in some cases, Barr's characterizations were incomplete or misleading. The Mueller report is more damning of Trump than the attorney general indicated.
The New York Times and The Washington Post reported April 3 -- after Barr's letter was released -- that some of Mueller's investigators were frustrated by the attorney general's limited disclosures about their work.
The Post reported that "members of Mueller's team have complained to close associates that the evidence they gathered on obstruction was alarming and significant," and more acute than Barr had indicated.
A spokesman for Mueller declined to comment for this fact check. But the plain language of the report in several respects does not match Barr's claims.
On the question of 'collusion'
Barr in his March 24 letter: "As the report states: '[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.'"
Barr quoted directly from the Mueller report, highlighting its conclusion that "the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities."
Left out was a key statement from Mueller that came right before what Barr quoted in his letter: "Although the investigation established that the Russian government perceived it would benefit from a Trump presidency and worked to secure that outcome, and that the Campaign expected it would benefit electorally from information stolen and released through Russian efforts, the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities."
Expecting to benefit may not be the same as actively cooperating, but the omission in Barr's letter is significant nonetheless. The full sentence from Mueller casts a different, less flattering light on the Trump campaign than Barr's letter indicated.
In short, Russia wanted Trump to win, and Trump campaign members were aware they would reap an advantage from the "information stolen and released through Russian efforts."
Barr during his Thursday news conference: "There was no evidence of Trump campaign 'collusion' with the Russian government's hacking."
Barr at some times in his news conference used the word "collusion," which is not a legal term for a crime. (The word "collusion" does not appear in the attorney general's March 24 letter.)
Mueller's report says: "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.' ... [C]ollusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office's focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law."
At other times in his news conference, and throughout his letter, Barr used the more specific terms "coordinated" and "conspiracy." That matches the language in Mueller's report.
A Justice Department official, speaking on the condition of anonymity, said "collusion" and "conspiracy" show up together in the thesaurus. According to Merriam-Webster, collusion means a "secret agreement or cooperation especially for an illegal or deceitful purpose."
But the issue here is not Barr's choice of synonyms. It's that his statements about collusion, coordination and conspiracy gloss over all the known ties between Trump campaign members and Russians. Mueller documented those ties exhaustively in the report.
Questions of legality aside, was there secret cooperation between Trump's campaign and the Russian government?
As we've noted, the Mueller report says the Trump campaign "expected it would benefit electorally from information stolen and released through Russian efforts."
As The Post's Matt Zapotosky writes, the Mueller report "detailed a damning timeline of contacts between the Trump campaign and those with Russian ties -- much of it already known, but some of it new."
For example, the report says that in August 2016, Konstantin Kilimnik, whom the FBI has assessed as having ties to Russia, met with Trump campaign chairman Paul Manafort "to deliver in person a peace plan for Ukraine that Manafort acknowledged to the Special Counsel's Office was a 'backdoor' way for Russia to control part of eastern Ukraine."
The report says Kilimnik and Manafort believed the plan would "require candidate Trump's assent to succeed (were he elected President)."
"They also discussed the status of the Trump Campaign and Manafort's strategy for winning Democratic votes in Midwestern states," the report says. "Months before that meeting, Manafort had caused internal polling data to be shared with Kilimnik, and the sharing continued for some period of time after their August meeting."
Examples abound of Trump campaign officials being in contact with Russians during the 2016 campaign.
On June 3, 2016, a music publicist named Rob Goldstone emailed Donald Trump Jr. offering "very high level and sensitive information" that could "incriminate Hillary [Clinton]." Goldstone described this as "part of Russia and its government's support for Mr. Trump." Trump Jr. responded, "If it's what you say I love it especially later in the summer." Goldstone set up a meeting with a Russian lawyer, Natalia Veselnitskaya.
On June 9, 2016, the meeting at Trump Tower with Veselnitskaya included Trump Jr.; Trump's son-in-law, Jared Kushner; Manafort; and others. It was fruitless as far as turning up dirt on Clinton, but attendees did discuss easing sanctions on Russia, Mueller's investigation found. Veselnitskaya "claimed that funds derived from illegal activities in Russia were provided to Hillary Clinton and other Democrats," the report says. "Trump Jr. requested evidence to support those claims, but Veselnitskaya did not provide such information. She and her associates then turned to a critique of the origins of the Magnitsky Act, a 2012 statute that imposed financial and travel sanctions on Russian officials and that resulted in a retaliatory ban on adoptions of Russian children. Trump Jr. suggested that the issue could be revisited when and if candidate Trump was elected. After the election, Veselnitskaya made additional efforts to follow up on the meeting, but the Trump Transition Team did not engage."
This meeting posed "difficult statutory and constitutional questions," Mueller said in the report, but his office "ultimately concluded that, even if the principal legal questions were resolved favorably to the government, a prosecution would encounter difficulties proving that Campaign officials or individuals connected to the Campaign willfully violated the law." (Emphasis on "willfully.")
Mueller also documented an instance in which Trump's public comments closely coincided with a Russian intelligence agency's moves to hack Clinton's emails.
"On July 27, 2016, Unit 26165 [of Russia's GRU, an intelligence agency] targeted email accounts connected to candidate Clinton's personal office ... Earlier that day, candidate Trump made public statements that included the following: 'Russia, if you're listening, I hope you're able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.' The '30,000 emails' were apparently a reference to emails described in media accounts as having been stored on a personal server that candidate Clinton had used while serving as Secretary of State.
"Within approximately five hours of Trump's statement, GRU officers targeted for the first time Clinton's personal office. After candidate Trump's remarks, Unit 26165 created and sent malicious links targeting 15 email accounts ... including an email account belonging to Clinton aide [name redacted]. The investigation did not find evidence of earlier GRU attempts to compromise accounts hosted on this domain. It is unclear how the GRU was able to identify these email accounts, which were not public."
The Mueller report shows that the Russian hacking and cyber-propaganda push coincided with a series of contacts between Trump campaign officials and individuals with ties to the Russian government. However, the report also says: "We understood coordination to require an agreement-tacit or express-between the Trump Campaign and the Russian government on election interference. That requires more than the two parties taking actions that were informed by or responsive to the other's actions or interests."
The Justice Department official we spoke to emphasized Mueller's bottom-line decision not to bring charges of illegal coordination or conspiracy and said it was not reasonable to consider the contacts between Trump campaign officials and Russians as collusion in any sense.
On the question of obstruction of justice
Barr in his March 24 letter: "The Special Counsel therefore did not draw a conclusion -- one way or the other -- as to whether the examined conduct constituted obstruction. Instead, for each of the relevant actions investigated, the report sets out evidence on both sides of the question and leaves unresolved what the Special Counsel views as 'difficult issues' of law and fact concerning whether the President's actions and intent could be viewed as obstruction. The Special Counsel states that 'while this report does not conclude that the President committed a crime, it also does not exonerate him.'"
Barr during the Thursday news conference: "After finding no underlying collusion with Russia, the Special Counsel's report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel's investigation. As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation. Instead, the report recounts 10 episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense."
Mueller declined to reach a decision on whether to bring charges against Trump for obstructing justice. The special counsel also did not make an explicit recommendation to Congress on impeachment.
But Mueller spent nearly half of the report laying out a sustained effort by Trump to derail the investigation, including an effort by the president to have him removed.
"The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels," the report says. "These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General's recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony. Viewing the acts collectively can help to illuminate their significance."
Mueller concluded that Trump fired FBI Director James Comey because Comey wouldn't clear the president publicly.
"Substantial evidence indicates that the catalyst for the President's decision to fire Comey was Comey's unwillingness to publicly state that the President was not personally under investigation, despite the President's repeated requests that Comey make such an announcement," the report says.
Barr in his March 24 letter: "The Special Counsel's decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime."
Barr during the news conference: "Special Counsel Mueller did not indicate that his purpose was to leave the decision to Congress; I hope that was not his view, since we don't convene grand juries and conduct criminal investigations for that purpose. He did not -- I didn't talk to him directly about the fact that we were making the decision. But I am told that his reaction to that was that it was my -- my prerogative as attorney general to make that decision."
Barr and Deputy Attorney General Rod Rosenstein reviewed Mueller's evidence on obstruction and found that Trump did not break the law. These comments from Barr also indicate that he and Rosenstein have the last word on this question.
The attorney general is Mueller's boss, but the report does not say Mueller intended to leave obstruction-related decisions to Barr.
Trump's attorneys argued the president could not obstruct justice by exercising his constitutional authority to fire Comey. Mueller rejected that argument, and his report uses suggestive language about Congress's role in this debate.
It says: "With respect to whether the President can be found to have obstructed justice by exercising his powers under Article II of the Constitution, we concluded that Congress has authority to prohibit a President's corrupt use of his authority in order to protect the integrity of the administration of justice. ...
"The conclusion that Congress may apply the obstruction laws to the President's corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law."
In those passages, Mueller was saying that Congress, as a general matter, has the power to subject the president to obstruction laws. Mueller also said he declined to reach a decision on obstruction charges in part because he did not want to "potentially preempt constitutional processes for addressing presidential misconduct." That's a reference to impeachment, as a footnote at the end of the sentence makes clear. The special counsel noted that he was following a Justice Department policy not to indict a sitting president.
"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," the report says. "Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President's actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him."
Mueller's report also says (also suggestively): "In addition, the President had a motive to put the FBI's Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns."
On the report's early release to the White House
Barr during the news conference: "Following my March 29th letter, the Office of the White House Counsel requested the opportunity to review the redacted version of the report in order to advise the president on the potential invocation of privilege, which is consistent with long-standing practice. . . .
"In addition, earlier this week, the President's personal counsel requested and were given the opportunity to read a final version of the redacted report before it was publicly released. That request was consistent with the practice followed under the Ethics in Government Act, which permitted individuals named in a report prepared by an Independent Counsel the opportunity to read the report before publication. The President's personal lawyers were not permitted to make, and did not request, any redactions."
Barr's decision to share an advance copy of the Mueller report with White House lawyers and Trump's personal attorneys departs from the precedent set by independent counsel Kenneth Starr in 1998, as The Post's Rosalind S. Helderman writes.
Starr investigated President Bill Clinton's affair with White House intern Monica Lewinsky and whether Clinton obstructed justice and lied to investigators.
On Sept. 7, 1998, Clinton attorney David Kendall wrote a letter to Starr to ask for a "brief opportunity" to review Starr's report before it was transmitted to Congress. Two days later, Starr said no. The independent counsel law under which he operated required him to send the report directly to Congress, Starr said. That law has expired, and regulations governing Mueller's work are different.
However, Barr said he shared an advance copy of the report with Trump's lawyers consistent with "long-standing practice." The last time an independent or special counsel was appointed to investigate a sitting president, the opposite happened: Starr said no.
Asked about this, the DOJ official said Barr "was addressing how the process of executive privilege generally works" when he referred to "long-standing practice." That means his statement, in what were prepared remarks, was unclear and suggestive. It easily could have been taken to mean that it's typical to share the report with the president before its public release.
On whether the White House 'fully cooperated' with Mueller
Barr during the news conference: "The White House fully cooperated with the Special Counsel's investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation."
This is an astonishing claim. Trump has been attacking Mueller's investigation for two years. Trump declined interview requests from the special counsel and his written answers to questions were deemed "inadequate" by Mueller's team.
Asked about this, the Justice Department official emphasized the president chose not to assert executive privilege, turned over reams of documents and directed aides to testify. That's significant, indeed. But to call this full cooperation is highly misleading.
An entire volume of Mueller's report -- 182 pages long -- is dedicated to 10 episodes of potential obstruction, including efforts by Trump to oust Mueller and curtail his investigation, Trump's moves to conceal the purpose of the Trump Tower meeting with Veselnitskaya when reporters started asking about it, and actions taken by the president that could have influenced witness testimony (such as his frequent talk of presidential pardons and "rats").
According to the report, Trump stated more than 30 times in his written answers that he "does not 'recall' or 'remember' or have an 'independent recollection'" of information sought by Mueller's investigators.
The report says Mueller chose not to pursue a subpoena to compel Trump's testimony because of the "substantial delay" that would have caused. The special counsel's team added they had "sufficient evidence to understand relevant events and to make certain assessments without the President's testimony."
One of the blanks Trump left unfilled concerned the Trump Tower Moscow project, according to the report.
"On November 20, 2018, the President submitted written responses that did not answer those questions about Trump Tower Moscow directly and did not provide any information about the timing of the candidate's discussions with [former Trump lawyer Michael] Cohen about the project or whether he participated in any discussions about the project being abandoned or no longer pursued," the Mueller report says.
"In light of the President's public statements following Cohen's guilty plea that he 'decided not to do the project,' this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he 'decided not to do the project,' who he spoke to about that decision, and what motivated the decision. The Office also again asked for the timing of the President's discussions with Cohen about Trump Tower Moscow and asked him to specify 'what period of the campaign' he was involved in discussions concerning the project. In response, the President's personal counsel declined to provide additional information from the President and stated that 'the President has fully answered the questions at issue.'"
In other words, a brushoff.
The Pinocchio Test
Each of these comments from Barr presents an incomplete or misleading view of Mueller's investigation and conclusions.
In some cases (regarding obstruction and collusion), the attorney general's claims are accurate in a narrow, legalistic sense -- but they are stripped of important context that casts Trump and his campaign in a damning light.
In other cases, Barr's claims are not accurate. We fail to see how Trump's long campaign to attack, stymie and remove Mueller can be reconciled with Barr's statement about full cooperation. Trump's decision not to sit for an interview is, in fact, a lack of cooperation. So is the decision not to furnish requested information about the Moscow project.
We also don't see how it can be considered "long-standing practice" for independent or special counsels to give a sneak preview of their findings to the White House. The one appointed before Mueller explicitly declined to give Clinton an advance copy of his report. We're told that Barr, a seasoned lawyer, was talking about the process of invoking executive privilege. In that case, his remarks were woefully imprecise and easily gave the impression he was talking about the report's early release.
In their totality, these statements gave a warped view of the Mueller report. The attorney general strayed far enough from the facts to merit Three Pinocchios.