It’s easy to mislead someone without lying. You just withhold information.
Take, for instance, just about any sentence Attorney General William Barr said in his Wednesday testimony in front of the Senate Judiciary Committee. Or take the much, much bigger issue of how he misrepresented Special Counsel Robert Mueller’s report, up to the point where he has managed to cover up a profound disagreement with Mueller: Mueller believes his evidence establishes that Trump committed obstruction of justice, and Barr said the opposite.
That’s shocking and obviously (and intentionally) complicated, so I’ll cover it in the second part of this article. First, we need to understand what Barr’s game is. And to do that, we turn to none other than former Secretary of Defense Donald Rumsefeld.
This has been Barr’s schtick throughout this process: He’ll say truthful things, but he won’t say everything. This is a big problem, and it’s part of—and preying on—a larger trend about truth in America: You can’t prove something doesn’t exist, and you can’t critique something that doesn’t exist. This is why conspiracy theories won’t go away, and why so many people still insisting Trump committed crimes are seen more and more like conspiracy theorists.
This, of course, is what former Secretary of Defense Donald Rumsfeld meant when he famously warned of “unknown unknowns”:
...there are also unknown unknowns—the ones we don’t know we don’t know. And if one looks throughout the history of our country and other free countries, it is the latter category that tend to be the difficult ones.
At the time—Rumsfeld was justifying our military presence in Iraq—he sounded ridiculous, but today he sounds prophetic. And this is the unsolvable philosophical problem Bill Barr willfully presents, repeatedly, without any apparent shame or compunction. Barr’s summary—which not only omitted Mueller’s full summaries and conclusions, but took out of context every sentence quoted from the report; literally none of them were complete—made the Mueller report unsolvable for the public.
And here is Bill Barr’s greatest sin yesterday: Misleading the public and Congress about whether Mueller thought Trump committed a crime.
But to get a feel for Barr, let’s look at a few much simpler things he told the Senate on Wednesday.
Here’s the first, a statement about the letter Special Counsel Robert Mueller sent Barr criticizing his four-page summary of the Mueller report a few days after Barr submitted that summary to Congress:
I talked directly to [Special Counsel] Bob Mueller about his letter to me and specifically asked him, “What exactly are your concerns? Are you saying that the March 24 letter was misleading or inaccurate, or what?” He indicated that it was not. He was not saying that.
So: Barr asked whether Mueller thought Barr’s initial summary was “misleading” or “inaccurate.” According to Barr, Mueller “indicated” (not “said”) it wasn’t. Here Barr withholds information: We don’t know what Mueller actually said. He might not have responded directly to Barr’s question, or he might have refused to answer it outright.
Barr also pointedly doesn’t address what Mueller’s letter itself said—only their phone call about the letter. Here’s what Mueller said in the letter, emphasis mine.
As we stated in our meeting of March 5 and reiterated to the Department early in the afternoon of March 24, the introductions and executive summaries of our two-volume report accurately summarize this Office’s work and conclusions. The summary letter the Department sent to Congress and released to the public late in the afternoon of March 24 did not fully capture the context, nature, and substance of this Office’s work and conclusions.
Mueller’s letter stops short of accusing Barr of intentionally misleading—Mueller never uses that word—though it’s clear he believed Barr’s summary misled the public. Barr also said in testimony, remarkably, he didn’t know if Mueller supported his conclusions. This seems to contradict what Mueller says in his letter, but Barr slips around this by inverting it: Mueller was saying Barr’s summary didn’t reflect Mueller’s conclusions; he never mentions what he thinks of Barr’s own conclusions.
In fact, Mueller wrote the letter specifically because he was concerned about “public confusion about critical aspects of the results of our investigation”—in other words, Barr’s summary had led people to misinterpret key aspects of Mueller’s report. But this leads to the second part: whether Mueller told Barr the summary was “inaccurate.”
Barr’s testimony misled the Senate the same way his summary misled the public: He withheld critical information. But that doesn’t mean the information he did give was “inaccurate.” In fact, Barr had the gall not only to split hairs about accuracy, but to turn the tables on the press.
Barr told Senator Richard Blumenthal that in that phone call Mueller had said “press reporting had been inaccurate and that the press was reading too much into it.” Barr’s saying “See? It wasn’t me who was inaccurate! It was the damn PRESS! And don’t we just hate the damn PRESS?” Except Mueller’s letter said nothing about the press. From the letter:
There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations. Release at this time would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation. It would also accord with the standard for public release of notifications to Congress cited in your letter. See 28 C.F.R. § 609© (“the Attorney General may determine that public release” of congressional notifications “would be in the public interest”).
And here Barr’s testimony misleads us twofold. First, his displacement of blame from himself onto the press preys on the conditioned responses from right-wing Trump apologists (and the Glenn Greenwald left), who take every chance they can to blame the press for the public’s beliefs about the Russia investigation. Thus Barr, by withholding information, gives them the opportunity to mislead us again: “Haha! Even Mueller thinks it’s the press’s fault!”
And lo, they did. Worst of all: Trump did.
Second, Barr focuses only on what Mueller said about the press in the call. He doesn’t say Mueller didn’t name other possible sources of public confusion, such as Trump’s own misleading statements that the Mueller report was a “complete exoneration,” which it literally said it was not. (Oh, so it wasn’t just the press who read it wrong.) FURTHER, Barr didn’t volunteer that Mueller did not bring up anything else in that call. Barr knows that unless you’re wise to the withholding game, the question of whether Mueller said other things might not even cross your mind—especially when he distracts you with the shiny object of your preconceived enemy.
This means Barr is willing to accept an unconscionable level of collateral damage. He’s willing to mischaracterize Robert Mueller as someone who hates the press—the same line of attack Trump has used for years now—when he knows for a fact that’s not the story. He’s willing to contribute to the erosion of public trust the press in order to dam up the real problem: The erosion of public trust in himself.
Again, unknown unknowns: Until we had the full Mueller report, Mueller’s full conclusions didn’t exist for the public. And until we hear from Mueller himself about a phone call he had with Barr, or see Barr’s notes about the phone conversation—which he testified he does indeed have, but for some weeeeiiiiird reason didn’t submit to the Senate—we don’t know what doesn’t exist in that call. But about that report…
The Mueller report is a playground for a master dissembler like Barr. The report is long, sprawling, complex, and premised on theories of law that not even legal experts at the highest level agree on or even fully understand yet. That’s why Mueller wanted Barr to release the Special Counsel’s summaries and conclusions in full and immediately. A few incomplete sentences in no way give the public—and Congress, as Mueller pointedly said in both the report and in his letter of complaint to Barr—a complete understanding of not just what the investigation concluded, but more importantly how and why it reached those conclusions.
This brings us to the huge overriding question here: What does Mueller’s report even mean? Did he think Trump did it or what?
And this is where things get not only really wonky and weird, but really dangerous, because in explaining what Mueller meant you have to get into details. This again is the consequence of withholding—or in colloquial terms, what we’d call “lying by omission.” Barr intentionally withheld the full text and details of the Mueller report as long as he could, because in withholding them he could let his clear declarations rule the day (in this case, the weeks). Once you dig into the complicated report weeks later, you seem either like you’re desperately moving the goalposts, or outright wrong.
So this is the nut of our confusion. But here’s what Mueller wanted: He presented his evidence so Congress could take up the question of impeachment.
First, Mueller didn’t and wouldn’t say in his report that his evidence established Trump committed a crime. The report also pointed out that if Mueller’s team could “clear” Trump of a crime, they “would so state”—a strange phrase for a prosecutor, because it’s their job to decide whether to prosecute someone for a crime, not to clear them of it. Barr, however, took the extra step Mueller wouldn’t: He said he (and Deputy Attorney General Rod Rosenstein; another fall guy for Barr) concluded the evidence gathered over the course of the investigation didn’t establish that Trump committed “an obstruction of justice offense.”
But Mueller didn’t just duck the question of reaching a conclusion about whether he thought there was a crime here. He ducked his responsibility for making that decision. Was this cowardly?
Well, probably not. If Mueller—after saying he was abiding by the Office of Legal Counsel (OLC) guidelines that a sitting President can’t be indicted—were to say “Yes, we think Trump committed a crime,” he wouldn’t be able to indict Trump for that crime. Oddly, this is compassion for Trump: If he can be accused of a crime but can’t be indicted for it, that takes away his right to exonerate himself in court. The public would believe Trump is a criminal, and he wouldn’t have his constitutional right to try to convince them otherwise. Mueller also notes the OLC—which speaks only to indictability—doesn’t prevent him from clearing Trump, which is why he makes clear that in this case he can’t do that, either. Notably, Mueller also withholds: The report doesn’t say not only is the President clear, it nowhere says the evidence doesn’t establish a crime. It doesn’t even weigh in on that question.
Enter Bill Barr, who weighs in on the evidence question. And it’s here, after breaking it down, that we can finally see the real conflict between Mueller and Barr, and the real reason for Mueller’s letter. In short, Mueller doesn’t agree with Barr that the evidence did not establish a crime. But here’s what Barr told the Senate about that:
Special Counsel Mueller stated three times to us in that meeting in response to our questioning that he emphatically was not saying that but for the OLC opinion, he would have found obstruction. He said that in the future, the facts of the case against a president might be such that a special counsel would recommend abandoning the OLC opinion but this is not such a case.
Barr wants us to believe that if there were no OLC guidance, Mueller still would not have found obstruction. But to find obstruction, you have to evaluate your evidence, and the OLC does not prevent Mueller from evaluating his own evidence. In other words, Mueller could have — and obviously did … — find obstruction. In other words, Mueller wasn’t prevented from finding obstruction, he was prevented from SAYING he found it, because that would automatically trigger him recommending indictment and the guidelines he operates under prohibit him from doing so. And that’s exactly the reasoning Mueller laid out in his report.
Senator Sheldon Whitehouse asked Barr about this, too. If the DOJ did incriminate Trump, what would prevent the President from waiving the OLC guidance and getting his day in court? Here Barr and Mueller face different questions. As Special Counsel, it’s not Mueller’s job to interpret the OLC guidelines. He just has to abide by the letter of what they say. Barr, however, would be in a position as Attorney General to interpret the guidelines. This is why in response to Whitehouse’s question Barr simply said, “I don’t think there was anything to have a day in court on, I didn’t think the government had a prosecutable case.”
In other words, Barr just said he would have overruled Mueller no matter whether Mueller concluded there was a crime. Barr would have protected Donald Trump no matter what.
And note how weirdly Barr phrases that response: “the facts of the case,” not the evidence the investigation developed. Mueller, in other words, concluded this particular crime—obstruction of justice—would not merit challenging the OLC. It’s imaginable that another crime, such as treason, would merit a challenge, but a procedural crime such as obstruction of justice would not. In any case, none of what Barr said should be taken to mean that Mueller doesn’t think the evidence could establish the crime of obstruction. And indeed, Barr figured out this puzzle: A prosecutor would make the (overwhelming) case against Trump based on what—as Senator Amy Klobuchar pointed out to Barr—is called “totality of the evidence.” That is, taking all of Trump’s instances of possible obstruction into account, and arguing the pattern (again, overwhelmingly) evidences Trump’s intent to obstruct the investigation.
Mueller alludes to the applicability of this theory several times in his report. Barr’s summary, notably, disagreed with what he characterized as some of the “legal theories” underpinning Mueller’s reasoning. He also in his testimony Wednesday disputed the value in this case of applying this widely used legal theory—which has been upheld … as valid in federal court—and that, of all things, is where he really hangs his tattered hat.
The U.S. legal code regarding perjury says that in order to find someone guilty of lying to Congress, that person must “willfully” say or submit “as true any material matter which he does not believe to be true.” CNN legal analyst Michael Zeldin put it this way: “For testimony to be legally actionable as a lie, it has tomeet a pretty precise standard.” Regarding Barr’s testimonies, he says, “I still think you would have a very difficult time trying to build a criminal case.”
There doesn’t seem to be a criminal case you can make against Barr for his disastrous testimony and dangerous behavior. Democrats in Congress who might want to act on it—including a private conversation with Nancy Pelosi where she doesn’t take imprisonment off the table—risk embarrassment.
Bill Barr hasn’t technically told a lie, at least not yet, and not on a criminal level. He has lied by omission though, and he’s done so repeatedly, and with palpable spite, disdain, arrogance, and recklessness. The damage, it seems, has been done, unless Democrats wise up and let Mueller state his case. It’s time for us to get over the Barr.