Andrew McCarthy: Mueller's letter to Barr – A neat trick by the Washington Post before hearings begin
“Mueller complained to Barr about memo on key findings.” That’s the banner headline at the top of the Washington Post’s website Wednesday. But when you click your way to the actual story, it turns out that the headline is not true. Special Counsel Mueller’s complaint, which targeted Attorney General Barr’s March 24 letter explaining the report, is not about the “key findings.” It’s about the narrative.
Mueller’s complaint is that Barr “did not fully capture the context” of Mueller’s magnum opus – the “nature and substance” of the report.
Parsed carefully (which you have to do with the special counsel’s Jesuitical work), Mueller is precisely not saying that Barr misrepresented his key findings. He is saying that he and the Clinton/Obama minions he recruited to staff the case wrote the report with a certain mood music in mind. To their chagrin, Barr gave us just the no-crime bottom line. Mueller would have preferred for us to feel all the ooze of un-presidential escapades he couldn’t indict but wouldn’t, from his lofty perch, “exonerate.”
The purportedly private letter to Barr, like Mueller’s purportedly confidential report, was patently meant for public consumption, and thus leaked to the Post late yesterday. The timing is transparently strategic: the leak drops a bomb as Barr was preparing for two days of what promises to be combative congressional hearings, starting this morning; it gives maximum media exposure to Mueller’s diva routine and its Democratic chorus, while the attorney general gets minimal time to respond to asinine cries of that he should be charged with perjury, held in contempt, and – of course – impeached.
The Post’s reporters say they were permitted to “review” the letter yesterday. This phrasing implies that they were not permitted to keep a copy – i.e., no fingerprints on this leak of a close-hold document. Keep that in mind next time you read one of those hagiographies about ramrod straight Bob Mueller who never plays these Washington games, no siree.
The Democrats’ perjury/contempt/impeachment slander against Barr is based on the fact that, in prior congressional testimony, Barr was asked whether Mueller agreed with Barr’s conclusions about the report, including that there was insufficient evidence to charge obstruction. Barr replied that he did not know whether Mueller agreed. Democrats now contend that Barr must have known Mueller disagreed because he had Mueller’s letter. But Mueller’s letter doesn’t say he disagreed with Barr’s conclusion – it says he was unhappy with how his work was being perceived by the public.
Barr and Mueller spoke by phone the day after Mueller sent his letter. If you wade through the first 13 paragraphs of the Post’s story, you finally find the bottom line:
"When Barr pressed Mueller on whether he thought Barr’s memo to Congress was inaccurate, Mueller said he did not but felt that the media coverage of it was misinterpreting the investigation, officials said."
So even Mueller conceded, through gritted teeth, that Barr’s letter was accurate. The diva was just worried about the media coverage.
No surprise there. Barr’s letter conveyed that Mueller had failed to render a prosecutorial judgment on the only question a special counsel was arguably needed to decide: Was there enough evidence to charge President Trump with obstruction, or should prosecution be declined?
On collusion, Mueller’s report had conveyed what everyone already knew from the indictments Mueller had previously filed, and what Mueller himself must have known very soon after taking over the probe in May 2017: There was no case.
Plainly, this was an obstruction investigation: Mueller was appointed just days after (a) the president’s dismissal of FBI Director James Comey, and (b) the FBI’s opening of an obstruction investigation against the president based on acting Director Andrew McCabe’s harebrained theory that the chief executive’s firing of a subordinate can constitute obstruction of justice – under circumstances where (1) the president had the power to halt the Russia investigation but never did; (2) the Russia investigation was a counterintelligence matter, which is done for the president, not for prosecution in the justice system (hence, justice cannot be obstructed); and (3) McCabe testified after Comey’s firing that no one had attempted to obstruct the investigation.
Under the circumstances, Mueller’s main job was to answer the obstruction question. He abdicated. Barr’s letter made that obvious. The press coverage elucidated it. This made Mueller very unhappy. So he wrote a letter whining about “context.”
Of course, context is not a prosecutor’s job. That is the stuff of political narratives.
Mueller was not effectively supervised. Deputy Attorney General Rod Rosenstein allowed him to get into the political narrative business – just as he allowed the special counsel to persist in the collusion investigation for over a year after it was clear that there was no collusion case.
Without supervision, Mueller’s staff continued weaving a tale rather than acknowledging that they had not found a crime. For example, the allegation against George Papadopoulos – namely, that he lied about the date of a meeting – could have been charged in a single paragraph. Instead, the charge is accompanied by Mueller’s 14-page “statement of the offense,” which is not a statement of the false-statement offense at all – it is a lot of huffing and puffing about almost-but-not-really collusion.
The Michael Flynn false-statements charge similarly comes with a script about unremarkable discussions between an incoming national security advisor and Russian counterpart that are portrayed as almost-not-quite-collusion.
The Roger Stone indictment for still more process crimes – i.e., crimes the investigation caused rather than examined – is a 20-page epic of “something around here sure smells like collusion.”
No collusion charges, no espionage conspiracy evidence … just enough intrigue to keep a soap opera rolling along.
It is not a prosecutor’s job, under the pretext of “context,” to taint people by publicizing non-criminal conduct. If the investigative subject has committed no offense, the public is customarily told nothing. If a defendant is charged with a relatively minor offense, the indictment is supposed to reflect that.
You are supposed to see the crime for what it is, not view it through the prism of the prosecutor’s big ambitions. If all George Papadopoulos did was fib about when a meeting happened, the function of an indictment is to put him on notice of that charge; it is not to weave a heroic tale of how hard the prosecutor tried to find collusion with a hostile foreign power.
Mueller was annoyed because Barr’s report showed Mueller didn’t do the job he was retained to do, and omitted all the narrative-writing that Mueller preferred to do.
Before Attorney General Barr issued his letter outlining the special counsel’s conclusions, Mueller was invited to review it for accuracy. Mueller declined. After Barr explained that Mueller had not decided the obstruction question, the press reported on this dereliction. Mueller is miffed about the press coverage … but he can’t say Barr misrepresented his findings.
Like the Mueller investigation, this episode is designed to fuel a political narrative. But we don’t need a narrative – we don’t even need anyone to explain the report plainly. That’s because we now have the report. We can read it for ourselves. The rest is noise.
By Andrew McCarthy