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In Context !!

Posted By old me
Date Monday, 20 May 2019, at 7:00 a.m.

Barr’s Testimony, In Context


In testifying about the special counsel’s report on the investigation into Russian interference in the 2016 presidential campaign, Attorney General William Barr made statements that lacked context or didn’t tell the whole story:

  • Barr said there was a “very plausible alternative explanation” to White House counsel Don McGahn’s claim that the president asked him to have Robert Mueller removed as special counsel. But Mueller’s report makes clear that his office believed McGahn’s version, and laid out several reasons for its conclusion.
  • Barr said special counsel Mueller “never pushed” to have investigators interview President Donald Trump, even after finding the president’s written responses were inadequate. Mueller did not attempt to subpoena Trump, but he made multiple attempts to obtain a sit-down interview, including once in a letter after Trump submitted his written responses.

On May 1, Barr took questions for nearly four hours from the Senate Judiciary Committee about the Mueller report. The redacted report, which was released April 18, found that the “Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” It did so through “a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” and “computer-intrusion operations” against Clinton and Democratic committees that were designed to “undermine the Clinton Campaign.”

Nonetheless, the committee spent a lot of its time questioning Barr about whether the president obstructed justice.

The report says the investigation “established multiple links between Trump Campaign officials and individuals tied to the Russian government,” but it “did not establish that the Campaign coordinated or conspired with the Russian government in its election-interference activities.” As for obstruction of justice, the Mueller report said that while it “does not conclude that the President committed a crime, it also does not exonerate him.”

The report “found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations.” But Mueller refrained from recommending prosecution, saying the evidence about “the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.”

However, Barr — prior to releasing the redacted reported — announced that his office would not bring any charges against Trump. “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense,” Barr wrote.

Barr’s decision not to bring obstruction charges was the focal point of the Senate hearing.

‘Fired’ vs. ‘Removed’

One incident that was part of the obstruction investigation involved Trump and White House counsel McGahn.

McGahn told investigators that Trump asked him to have Mueller removed as special counsel. In his testimony, Barr said there was a “very plausible alternative explanation” for McGahn’s claim. But the Mueller report makes clear that it buys McGahn’s version, and laid out a series of reasons why it reached that conclusion.

In sworn testimony, McGahn told investigators that Trump called him twice on June 17, 2017, and ordered him to call Rosenstein, who at that point was overseeing the investigation, and have Mueller removed as special counsel based on conflicts of interest that Trump believed existed with Mueller (even though advisers told the president those alleged conflicts were “ridiculous”). McGahn recalls Trump telling him on the second call, “Mueller has to go.”

McGahn said he had no intention of relaying the president’s message to Rosenstein, deciding at that time that he would resign if the president persisted.

Then, after the New York Times subsequently reported that Trump “ordered the firing” of Mueller and backed down only after McGahn “threatened to resign rather than carry out the directive,” the special counsel report says, Trump repeatedly tried to get McGahn to correct the story. McGahn refused, saying the story was essentially accurate.

During Barr’s Senate testimony on May 1, several Democratic senators asked Barr why he didn’t pursue an obstruction charge against Trump based on those facts.

Barr said the evidence was not sufficient to establish an obstruction charge, in part because there was “a very plausible alternative explanation” for McGahn’s version of events.

Trump did not agree to provide written answers to any questions about obstruction, so he did not address, under oath, McGahn’s contention that Trump asked him to have Mueller removed. But according to McGahn’s testimony, Trump did take issue with the characterization that he asked McGahn to “fire” Mueller.

According to McGahn, Trump told him, “I never said to fire Mueller. I never said ‘fire.’” According to the report, McGahn recalled that Trump “said he merely wanted McGahn to raise the conflicts issue with Rosenstein and leave it to him to decide what to do.” McGahn said he immediately pushed back, telling the president, “he did not understand the conversation that way and instead had heard, ‘Call Rod. There are conflicts. Mueller has to go.'”

In his Senate testimony, Barr drew a distinction between “saying to someone, go fire him, go fire Mueller, and saying have him removed based on conflict.”

“There’s something very different between firing a special counsel outright, which suggests ending the investigation, and having a special counsel removed for conflict, which suggests that you’re going to have another special counsel,” Barr said.

In other words, Barr is arguing that Trump may have had good reason to believe the New York Times story was false.

Barr, referring to himself and Rosenstein, said: “So, we believe that it would be impossible for the government to establish beyond a reasonable doubt that the president understood that he was instructing McGahn to say something false because it wasn’t necessarily false.”

Although there are two versions of Trump’s instructions to McGahn, the special counsel report makes clear that it believes McGahn’s version, as we have written before.

And here are some of the reasons why:

Around the same time Trump talked to McGahn, New Jersey Gov. Chris Christie “recalled a telephone call with the President in which the President asked what Christie thought about the President firing the Special Counsel,” the report states. Christie advised against it.

The report also says there is evidence the president was aware that he should not have given McGahn those instructions.

“The President made the calls to McGahn after McGahn had specifically told the President that the White House Counsel’s Office — and McGahn himself — could not be involved in pressing conflict claims and that the President should consult with his personal counsel if he wished to raise conflicts,” the report says. “Instead of relying on his personal counsel to submit the conflicts claims, the President sought to use his official powers to remove the Special Counsel. And after the media reported on the President’s actions, he denied that he ever ordered McGahn to have the Special Counsel terminated and made repeated efforts to have McGahn deny the story. … Those denials are contrary to the evidence and suggest the President’s awareness that the direction to McGahn could be seen as improper.”

In his report, Mueller notes that Trump’s rebuttals of McGahn’s recollection were “carefully worded” and that Trump focused on whether he had used the word “fire.” Mueller wrote that “substantial evidence supports McGahn’s account that the President had directed him to have the Special Counsel removed” and that Trump’s “assertion in the Oval Office meeting that he had never directed McGahn to have the Special Counsel removed … runs counter to the evidence.”

The report states that McGahn has a “clear recollection” of Trump’s directive: “Mueller has to go.” And the report states, “McGahn is a credible witness with no motive to lie or exaggerate given the position he held in the White House.” The report notes that McGahn relayed to several White House staffers that in response to Trump’s request, he had decided to quit, that he packed up his office and prepared to submit a resignation letter. “Those acts would be a highly unusual reaction to a request to convey information to the Department of Justice,” the Mueller report states.

The report also notes that Trump, through his counsel, already had brought his complaints about Mueller’s purported conflicts to the attention of the Department of Justice, so “the President had no reason to have McGahn call Rosenstein that weekend to raise conflicts issues that already had been raised.”

The report concludes that “the President sought to use his official powers to remove the Special Counsel.”

On Trump’s Testimony

Barr also said Mueller never “pushed” Trump to provide an interview in person, even after finding the president’s written response to investigators to be inadequate. Mueller decided not to pursue a subpoena to try to compel the president to testify, but he did make one more written request for a sit-down interview.

In a Dec. 3, 2018, letter to Trump’s personal counsel, sent two weeks after Trump provided written responses to Mueller, the special counsel pointed out the “insufficiency of those responses” and made yet another appeal for an in-person interview. Such an interview, the special counsel’s office wrote, would provide Trump an “opportunity to voluntarily provide us with information for us to evaluate in the context of all of the evidence we have gathered.” Trump again declined.

The issue of Trump’s interview arose when Democratic Sen. Patrick Leahy questioned Barr about his claim during a press conference just prior to release of the redacted Mueller report that the White House had “fully cooperated” with the special counsel’s investigation (a claim that we examined in our story “What the Mueller Report Says About Obstruction“).

Leahy, May 1: He [Trump] never did testify, correct?

Barr: As far as I know.

Leahy: I think you know whether he testified or not.

Barr: As far as I know, he didn’t testify.

Leahy: And Mr. Mueller found the written answers to be inadequate, is that correct?

Barr: Uh, I think he wanted additional, but he never sought it.

Leahy: And the president never testified.

Barr: Well, he never pushed it.

We can be more definitive than Barr: Trump never testified in person with the special counsel investigators.

When Barr said, “He never pushed it,” it wasn’t entirely clear to us whether Barr meant that Mueller had never pushed for an in-person interview, or that he had not pushed for one after the president provided written responses. But neither is accurate.

According to the redacted report written by Mueller’s office, beginning in December 2017, the special counsel’s office “sought for more than a year to interview the President on topics relevant to both Russian-election interference and obstruction-of-justice.” In one May 16, 2018, letter, the special counsel advised the president that an interview with him was “vital to our investigation.” The letter also said “it is in the interest of the Presidency and the public for an interview to take place” and offered “numerous accommodations to aid the President’s preparation and avoid surprise.” After extensive negotiations with the Department of Justice, those “accommodations” included written questions provided to the president.

The special counsel received Trump’s written responses — which were made public in Appendix C of the Mueller report — in late November.

In the December letter to Trump’s personal attorney, the special counsel’s office “informed counsel of the insufficiency of those responses in several respects,” the Mueller report said. “We noted, among other things, that the President stated on more than 30 occasions that he ‘does not ‘recall’ or ‘remember’ or have an ‘independent recollection’ of information called for by the questions. Other answers were ‘incomplete or imprecise.’ The written responses, we informed counsel, ‘demonstrate the inadequacy of the written format, as we have had no opportunity to ask followup questions that would ensure complete answers and potentially refresh your client’s recollection or clarify the extent or nature of his lack of recollection.'”

In that letter, the special counsel “again requested an in-person interview, limited to certain topics, advising the President’s counsel that ‘[t]his is the President’s opportunity to voluntarily provide us with information for us to evaluate in the context of all of the evidence we have gathered.’ The President declined.”

So the special counsel’s office continued to “push” for an in-person interview, even after getting Trump’s written responses. However, the special counsel decided not to issue a subpoena for his testimony, though it was considered.

“We viewed the written answers to be inadequate,” the Mueller report states. “But at that point, our investigation had made significant progress and had produced substantial evidence for our report. We thus weighed the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, against the anticipated benefits for our investigation and report.” Ultimately, the report states, the special counsel’s office “determined that the substantial quantity of information we had obtained from other sources allowed us to draw relevant factual conclusions on intent and credibility, which are often inferred from circumstantial evidence and assessed without direct testimony from the subject of the investigation.”

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