Over the last 24 hours, The New York Times and The Washington Post both have reported that people close to special counsel Robert Mueller’s investigation believe that Attorney General William Barr undersold some of the conclusions of the report.
The new reporting brings up as many questions as it does answers about what Barr said in his four-page summary of the 300+ page Mueller report – and what he didn’t say. Here are the most intriguing questions to me:
The Times piece is very careful to say “some of Robert S. Mueller III’s investigators” have told “associates” that they are unhappy with the way Barr presented their conclusions and how he seemed to downplay negative information within the report. We are talking about a team of nearly 60 people, according to the Times, so is it less than five who feel that way? Or is it half (or more) who think Barr undersold the report? The former could be dismissed as the normal dissents of a relative few within a broader team. The latter looks like a genuine effort of obfuscate by Barr.
1. How widespread is the discontent toward Barr within the special counsel’s office?
Rudy Giuliani, President Donald Trump’s lawyer, was on TV Wednesday night selling the idea that these complaints are coming from the few, not the many. “They are a bunch of sneaky, unethical leakers,” he told Fox News’ Laura Ingraham. “And they are rabid Democrats who hate the President of United States.”
2. Are the concerns about obstruction or collusion?
In both the Times and the Post stories, there are strong hints that the unhappiness within some of the special counsel staff may focus more on obstruction – although it’s never made entirely clear.
“The officials and others interviewed declined to flesh out why some of the special counsel’s investigators viewed their findings as potentially more damaging for the president than Mr. Barr explained, although the report is believed to examine Mr. Trump’s efforts to thwart the investigation.”
And, the Post:
“Members of Mueller’s team have complained to close associates that the evidence they gathered on obstruction was alarming and significant.”
It’s also worth noting that even in Barr’s summary letter, he notes that “the [Mueller] 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.”
3. Why didn’t Mueller make a recommendation on obstruction?
This isn’t a new question from the latest reporting but it’s perhaps the central one I keep coming back to. Mueller spent 22 months investigating. He was appointed as special counsel only after Trump fired FBI Director James Comey, who was leading the probe into Russian interference up to that point.
So why, when given the chance to provide clarity about whether what he had discovered suggested obstruction or not, did Mueller punt it to Barr? After all, Barr was not only a Trump appointee but also had made very clear in a memo written when he was a private citizen that he was disinclined to see the President as having obstructed justice. Mueller had to know what leaving the obstruction question open to interpretation would mean that Barr wouldn’t pursue it.
One new piece of information from the Times report is that Barr was apparently just as confounded about Mueller’s no-decision move. Wrote the Times: “Mr. Barr and other Justice Department officials believe the special counsel’s investigators fell short of their task by declining to decide whether Mr. Trump illegally obstructed the inquiry, according to the two government officials.”
4. Why didn’t Barr release the special counsel summaries (and why didn’t they suggest he should)?
We all know that Barr spent roughly 48 hours boiling down a 300+ page Mueller report into a four-page summary that he then sent to Congress. What we didn’t know until Wednesday night was that the special counsel’s office had actually prepared summaries of its own findings to Barr.
Here’s how the Times reported it:
“The special counsel’s investigators had already written multiple summaries of the report, and some team members believe that Mr. Barr should have included more of their material in the four-page letter he wrote on March 24 laying out their main conclusions, according to government officials familiar with the investigation.”
And/but in the very next paragraph, the Times notes that “the special counsel’s office never asked Mr. Barr to release the summaries soon after he received the report, a person familiar with the investigation said” – and that the summaries contained sensitive information that would have made them impossible (or at least very difficult) to release without redactions. (There is some disagreement here; the Post reporting says that the summaries “were prepared for different sections of the report, with a view that they could made public.”)
Why didn’t the special counsel’s office write a summary that was cleansed of that sort of information and recommend Barr release it – knowing that the effort to cull a 300+ page report down in a very short period of time would, of course, leave out some critical details? Or, conversely, why didn’t Barr use one of the summaries prepared by the special counsel’s office as his starting point, redacting what he felt necessary and then presenting that, rather than his four-page summary that barely quotes from the Mueller report, as the first cut at all of this? Or did Barr simply ignore the summaries, even though they could have been released as is to the public, and simply create his own document because he wanted to?
5. Will we ever see the summaries? (Or the whole report?)
The summaries, which, again according to the Post were “prepared for different sections of the report” could well be the key to all of this. Assuming we are very unlikely to see the FULL Mueller report – Barr has said he is currently going through it to redact information – the summaries may be the best look we get at the key findings, as seen by Mueller’s team.
At issue is whether the sources saying that the summaries contained sensitive information that makes their release difficult or the sources saying they were written with minimal sensitive information to make their releases easier are correct.
And, at the moment, only Barr and his deputies have the ability to answer that question. And they aren’t talking.