Congress must get the full Mueller report

[A much-condensed version of this blog will be published as a Letter to the Editor in the Friday, May 5th edition of the Atlanta Journal-Constitution.]

No, it's not enough for Attorney General William Barr to summarize or to give Congress a heavily redacted version of the Mueller report.   At least it's committee leaders, who have security clearance, need to see the full report.

Why?   Because, among other more crucial reasons, even a careful, liberal columnist like the Chicago Tribute's Clarence Page gets it wrong in quoting Attorney General William Barr's summary.   In his recent column, reprinted in the Atlanta Journal-Constitution, Page says this, [mis]quoting from Barr's summary:

According to Page, ". . . .Barr's summary quotes Mueller as saying no evidence of conspiracy or coordination with Russians by the Trump campaign was found . . ."

Actually, Barr's summary of the report says this:

"The special counsel did not find that the Trump campaign or anyone associated with it conspired or coordinated with the Russian government in these efforts despite multiple offers from Russian affiliated individuals to assist the Trump campaign" [emphasis added].

Now, if you read closely, there is a difference between conspiring with "the Russians" and with "the Russian government."    The latter leaves plenty of room for an elaborate conspiracy that uses several degrees of intermediaries to distance itself from the government itself.

If, as Barr's summary actually states, Mueller's statement said "Russian government," then I question whether we can conclude that there was no conspiracy.

The full report would provide complete sentences, in context, and would make clear whether this is important, or just an inadvertent slip, as is likely here by Page.

That, among many other crucial reasons, is why someone not in Trump's orbit needs to go over Mueller's report with careful scrutiny.

Ralph

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BREAKING  NEWS

Just last evening, the New York Times broke the story that some of Mueller's investigators have talked with their associates, who apparently are the sources for the Times story.   What they say is that AG Barr's summary released to the public does not accurately reflect the degree of damaging information about President Trump that is contained in the Mueller report.    There are as yet no further details made public about what they are referring to, although it seems to be about obstruction of justice rather than about conspiracy with Russia.

They also suggest that Mueller meant for Congress, not AG Barr, to make the decision about the question of obstruction.

Trump's victory lap may be premature.

The following is from an article for the Washington Post by Walter Dellinger, a professor of constitutional law and its history.

*     *     *

"President Trump and his allies are ridiculing the critics who anticipated that the report from special counsel Robert S. Mueller III would reveal devastating information. But those who vested Mueller’s Russia inquiry with their hopes may yet be proven right.

"All we can do right now is speculate about a report that only a few people have seen. But even based on what little we know — Attorney General William P. Barr’s summary, the indictments and court filings that came from Mueller’s team — it’s premature to write off its findings, which exceed 300 pages. Mueller’s office may have properly drafted a detailed and damning account of Trump’s obstruction of justice and simply cast it as a set of facts, a road map for the analysts who must decide what to do about it: members of Congress.

"If Mueller believed it was inappropriate to pronounce on the president’s guilt . . . he could still be following the example of Leon Jaworski, the Watergate independent counsel who decided against indicting President Richard Nixon, but instead submitted to Congress an extensive accounting of all the facts surrounding his efforts to shut down the investigation. . .  It simply told the story and allowed the branch of government tasked with oversight to do the rest.

"What Mueller may not have anticipated . . . . [that Attorney General Barr would] . . . in his own letter to Congress describing Mueller’s work, reach a definitive conclusion about the absence of criminal guilt. . . .  But “the Special Counsel’s decision” did not require this at all.  Instead, Mueller may have intended for Congress or voters to reach their own conclusions about Trump’s wrongdoing.  It was Barr, not Mueller, who decided that Barr should be the judge.

"What in the report might challenge Trump’s claim that he has been “exonerated”? . . . The counterintelligence portion may prove deeply embarrassing to those who argue that Mueller’s investigation should never have existed. . . .

"The absence of indictments of Trump campaign officials has left many of Trump’s critics feeling crestfallen and many of his defenders feeling vindicated. Both responses may be an overreaction. Barr says, 'The investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities' . . .

"But that hardly means there’s no damaging information about them. The standard by which Mueller measured provable criminality . . . . might preclude indictments . . . where the special counsel’s office could not expect to prove beyond a reasonable doubt that there was an actual 'agreement' between the campaign and the Russian government.   Even in the absence of indictments in connection with complicity, simply narrating the Russian attempts, and what the Trump team knew about them, would highlight the president’s utter failure to fashion an adequate defense of American democracy.

"The most damaging aspect of the report would be a thorough account of Trump’s efforts to obstruct justice. . . . . Barr’s letter says that Mueller included facts on 'both sides of the [obstruction] question.' That statement does not rule out the possibility that the facts are strongly on the side of guilt. But Mueller may simply have determined that he was bound by the 2000 opinion of the Justice Department’s Office of Legal Counsel (OLC) that a sitting president should not be indicted. . .

"If Mueller reasoned that way, he would have concluded that such a judgment should be left to the political branch of government. Congressional review is especially appropriate, because the worst offenses may not be criminal, and may demand something broader than a legalistic focus. It would be a grave offense for a presidential candidate secretly to be indebted to a foreign power and to lie about that relationship, for instance. But nothing in the criminal code forbids it. . . .

"During my years teaching constitutional history, I reviewed day-by-day the debates at the 1787 Philadelphia Convention. I was struck by how often the Constitution’s framers voiced fears of foreign influence in American affairs. The delegates repeatedly fretted that the fledging nation would become a plaything of European politics, leading to the emergence of a 'French party' and a 'British party' that would sap our capacity for self-rule. But I thought Americans would never tolerate foreign meddling, and I regarded their worries as unrealistic, even foolish. Until now."

*     *     *

What the Congress, the media, and we the people have to be diligent of now is the possibility that there is a cover-up in the making.   Why did Barr step in to make the determination about obstruction that Mueller declined to make?    

It is consistent with his recognized, extreme legal opinion that a sitting president cannot obstruct justice, due to the fact that he is in charge of the Justice Department and therefore all investigations.   (Eerie echoes of Nixon's:   "If the president does it, it's not illegal.")  Barr thinks that, if a president does it, it's not obstruction.   Few legal scholars agree with such an extreme stance.

So Barr stepped in rather than, as Mueller very clearly meant to do:  leave it to Congress to decide.    I would like to think that Barr was simply adhering to his odd legal belief, rather than that he is corrupt, giving Trump a free pass . . . which would suggest he will give other free passes.   But we don't know.

At the moment, we are heartened by Barr's saying that he will distribute the redacted report as soon as the middle of April.    But . . .  just how redacted?    Will he omit anything that does not add up to the standard for a chargeable, criminal offence?

We cannot accept that.   Congress shouldn't either.    But Republicans and the Trump administration are surely going to try.   There is no doubt that Trump chose Barr to be his AG because of his extreme view that a president cannot obstruct justice.   Now we have seen the result of that blatant gambit, where Barr wrote that 17 page "audition" opinion weeks before nomination -- and then, lo and behold -- he was selected by Trump to be Attorney General and confirmed by the Senate.

My prediction:    there are going to be so many court challenges as this goes forward, that the November 2020 election will overtake the timetable.   And then the people will decide.

Which may be the best outcome.   Just look at the Republicans' repugnant behavior -- and their distorting the facts -- in trying to force the resignation of Adam Schiff, chair of the House Intelligence Committee.    Impeachment is only as good as the degree of consensus, across party lines, that decides it.   At present, there is almost zero consensus between Democrats and Republicans in the Congress.

Ralph