In a letter to House and Senate leaders on Sunday, Attorney General William Barr revealed that he would not charge President Trump with obstruction of justice over his efforts to thwart the investigation into whether his campaign conspired with Russia to swing the 2016 election. In order to do so, Barr performed a remarkable gimmick that allowed him to not only break promises he made during his confirmation process, but also gloss over the crimes that Trump is suspected of committing.
It is widely believed that Barr had already categorically ruled out charging a president with obstruction. In a June 2018 memo, shared with Trump’s lawyer before his nomination, Barr argued that the theory of obstruction he believed Special Counsel Robert Mueller to be adopting would not be proper. But in that very same memo—on the very first page!—Barr conceded, “Obviously, the President … can commit obstruction in [a] classic sense of sabotaging a proceeding’s truth-finding function.” Barr envisioned that if a president “suborns perjury, or induces a witness to change testimony … then he, like anyone else, commits the crime of obstruction.”
That’s important, because we know that Trump has been involved in getting his aides to lie. His own lawyer, Jay Sekulow, reportedly edited the prepared statement Trump’s longtime personal attorney Michael Cohen gave to Congress about an effort to build a Trump Tower in Moscow. Cohen goes to prison in May, in part, for telling lies that Sekulow reviewed.
And Trump has repeatedly dangled pardons to subordinates under investigation, reportedly including former National Security Advisor Mike Flynn, former campaign chair Paul Manafort, and Cohen. Indeed, in a hearing in February, Mueller prosecutor Andrew Weissmann argued that Manafort lied about the details of sharing Trump campaign polling data with the Russian political operative Konstantin Kilimnik on August 2, 2016—knowing that the data would be passed on to others including other Russians—specifically to “augment his chances for a pardon.”
In Barr’s confirmation hearing in January, Senator Amy Klobuchar asked him whether a president “persuading a person to commit perjury [or] convincing a witness to change testimony would be obstruction.” He said yes, both would. And yet he just decided that a president who has apparently done both of those things did not commit obstruction of justice. Why?
Controversially, Mueller didn’t decide whether Trump obstructed justice. His report stated, “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.” Instead, Mueller provided Barr with the evidence for and against charging Trump with obstruction, leaving the decision up to the attorney general.
The contortions Barr goes through in his letter to renege on his confirmation hearing promises are extraordinary.
First, Barr describes the conclusions about the main crimes he says that Mueller investigated. “[T]he Special Counsel did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated with the IRA in its efforts,” Barr wrote. (The IRA, or Internet Research Agency, is a Russian troll farm with ties to the Kremlin.) He continued, “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in [its] efforts ... to gather and disseminate information to influence the election.”