Attorney General William Barr’s letter to Congress summarizing his own “initial review” of Special Counsel Robert Mueller’s report raises many questions in the course of providing some answers. Barr’s letter, including what it includes and what it omits, helps focus on key issues to consider when it comes time to examine the Mueller report itself.
Barr’s determination that “the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense” has rightly generated considerable debate already — particularly given the odd assertion that the absence of President Donald Trump’s involvement in an underlying crime (not a requirement for an obstruction offense) was probative, even if not dispositive, of the Attorney General’s conclusion. We’ll all be watching for what Mueller himself found with respect to whether, why, and how the President may have attempted to thwart the Russia investigation and any related probes.
But while important, the obstruction question is only one of several key issues we should watch for in Mueller’s report and any underlying investigative materials that may be released to Congress and the public.
1. Counterintelligence findings on coordination with Russia. According to Barr, the investigation “did not establish that members of the Trump campaign conspired or coordinated with” Russia. Is this a statement only about a lack of criminal conduct that can be proven beyond a reasonable doubt, or also a finding of the counterintelligence investigation into Russian interference in the 2016 election? If it is only a statement about criminal law (which seems more likely), what did Mueller and his team conclude about the suspicious actions and motivations of Trump and campaign associates vis-a-vis Russia beyond the realm of criminal conduct? Indeed, that counterintelligence question served as the principal task for Mueller in the order that established his mandate. The prosecution of “federal crimes arising from the investigation” was a secondary authority that the order provided Mueller as an adjunct to his principal counterintelligence mandate.
So, let’s turn to the important counterintelligence issues missing from Barr’s letter. Will Mueller’s report shed light on the intentions of the American participants in the infamous summer 2016 Trump Tower meeting, the intentions and actions of members of the presidential transition team who met with Russian officials including allegedly to create a “backchannel” with the Kremlin, and apparently coordinated efforts on the part of the Trump circle to conceal all their Russian contacts? What did Mueller make of Manafort’s sharing of internal campaign polling data with a suspected Russian intelligence agent in the summer of 2016? Were Russians able to use Trump campaign associates as unwitting agents? Did the campaign have awareness of the Russian use of social media platforms to influence the election in Trump’s favor?
Barr’s letter does not attempt to answer any of these questions, let alone acknowledge them. But they need answering. The public needs to learn of any serious wrongdoing on the part of Americans. And, in a more forward looking vein, American political representatives and legislators need to understand Russia’s playbook and how foreign adversaries can exploit individual and organizational vulnerabilities during an election.
2. Counterintelligence findings on whether Trump is compromised. Barr’s letter also sheds no light on what Mueller found, if anything, regarding Trump’s ongoing relationship with the Kremlin. In particular, may Trump’s financial interests in Russia present a national security threat? This type of information is less likely to implicate grand jury information, and while some aspects may be classified, there is an extraordinarily high public interest in understanding whether — and if so, to what degree — the President may be compromised by foreign powers based on his financial or other interests. As Marty Lederman recently wrote:
What explains his sycophancy to Russian President Vladimir Putin in Helsinki and elsewhere, and Trump’s apparent willingness to believe whatever the Russian leader tells him, even when it contradicts the uniform assessments of his own intelligence agencies? His reluctance to criticize Putin’s regime, even for its assassinations abroad?
… The much more important questions involve his motives and whether they compromise his current, and future, ability to perform his constitutional duties and functions.
During Watergate, President Richard Nixon said, “People have got to know whether or not their President is a crook.” More important, the public must know whether the President can be counted on to protect the country and advance our national interests ahead of his own financial interests or those of foreign actors.
3. The “several matters” Mueller referred to “other officers for further action.” We now know that there are no sealed indictments from Mueller’s office awaiting the light of day. And we know, per Barr, that the Mueller report does not recommend additional indictments. But are there still new criminal indictments in the offing? Is Barr’s language–stating that “the Special Counsel also referred several matters to other offices for further action”–merely a retrospective reference to those publicly disclosed matters referred to the Southern District of New York (e.g., hush money) and the District of Columbia (e.g., Roger Stone)? Or is that a reference to potentially unfinished business (Jerome Corsi and individuals who may have made false statements before Congress) or hitherto undisclosed active criminal investigative matters?
4. Alleged conspiracy and coordination with Russia. We know that Mueller did not find sufficient evidence that could prove beyond a reasonable doubt that members of the Trump campaign conspired or knowingly coordinated with the Russian government’s election interference activities. But that’s not to say Mueller failed to find evidence of those crimes. As former U.S. Attorney Joyce Vance explained, it may mean anything from Mueller finding zero evidence to his finding a mountain of evidence just shy of beyond a reasonable doubt. Alternatively, Mueller may have found beyond a reasonable doubt that Trump campaign associates worked in support the Kremlin’s efforts but did not satisfy every element required for a conspiracy or that Mueller could not prove beyond a reasonable doubt that they knowingly coordinated with Russia (for example, when they apparently coordinated with Wikileaks). We just don’t know how close to these lines the case was, but Mueller does and presumably he reported his findings to the Attorney General in anticipation that his report would also inform the public.
As two of us (Andy and Tess) wrote during Barr’s confirmation process in January, the Attorney General’s past record shows signs of a Department of Justice “company man” motivated by a desire to lead an institution he cares about in these troubling times, but other parts of his record could be seen as an embodiment of the troubling times themselves. Will he quickly but carefully work with the Special Counsel’s office to release as much information to the public as possible? Or will he hide behind “Department policies” and engage in a drawn-out fight with Congress to shield Trump and his associates to the greatest extent possible, while putting his own spin on what Mueller found?
In the days and weeks ahead, Congress and the public will hopefully come to understand the answers to the questions posed here, which go to the heart of what Mueller was charged with investigating. The information that has yet to come to light is what will tell us where to go from this point forward in terms of determining how to safeguard our democracy and whether those in power can be trusted to do so. Those lessons are, in many respects, the important part of what the Russia investigation was intended to provide. And it is largely up to Barr, and if not him the federal courts, how much of this information the public will see and when.