WASHINGTON — It was Attorney General William Barr — not special counsel Robert Mueller — who reached the decision that there wasn’t enough evidence to charge President Donald Trump with obstruction of justice.
That move now puts Barr, a Trump appointee five weeks into his tenure, under unprecedented pressure for the next decision he must make: how much more detail from Mueller’s investigation can be made public, particularly on obstruction.
Barr issued his decision against finding the president obstructed justice less than 48 hours after announcing he had received Mueller’s final report. And his reasoning closely matched an unsolicited memo he had written in June 2018 arguing that Mueller’s team had no standing to question the president about obstruction unless the underlying crime of collusion with Russia had been firmly established.
Now, every choice Barr makes and every word he writes in summarizing Mueller’s 22 months of work is likely to be second-guessed and criticized.
It’s unclear how long Barr will take to provide a fuller public report. Barr said he will work with Mueller and other Justice Department officials to determine what details can be released. He said he will have to filter out anything that is classified or covered by grand jury secrecy, as well as details of ongoing investigations by other U.S. attorneys. He also may consult with the White House, which could try to block disclosure of other information, citing executive privilege.
“My goal and intent is to release as much of the special counsel’s report as I can consistent with applicable law, regulations and departmental policies,” he wrote Sunday in his letter to Congress.
Barr is just beginning that process, but Democrats are already demanding more information on the obstruction decision. Barr is set to appear before a House subcommittee April 9 for a previously scheduled hearing on the Justice Department’s budget request, although other committees may call him to appear earlier.
Mueller surprised many legal experts — and apparently Barr — by declining to make his own recommendation on obstruction charges.
The special counsel notified Barr three weeks ago during an advance briefing on his report that he wouldn’t reach a decision on obstruction, according to a person familiar with the matter, who said that decision came as a surprise to Barr and Deputy Attorney General Rod Rosenstein. After the briefing, Barr decided he would make the call on obstruction, the person said.
In Mueller’s final report, he wrote that his probe didn’t “exonerate” Trump on this question, according to Barr’s letter.
Barr, a 68-year-old conservative and veteran corporate lawyer, told Congress on Sunday that he consulted with department officials on the obstruction matter, including Rosenstein, who oversaw Mueller’s investigation.
But the decision was made by Barr, who in his unsolicited memo had termed Mueller’s theory of obstruction “fatally misconceived.”
“Given Barr’s prior interventions in this as a private citizen on behalf of Trump — followed by his appointment as AG, and now this — we must have the full record in order to deal with the cloud that now hangs,” said Samuel Buell, a former prosecutor who teaches at Duke University School of Law. “Trump may have appointed an AG who lacked an open mind with regard to Mueller’s work, in part for the purpose of having himself cleared.”
Rosenstein, who is expected to leave the Justice Department soon, has his own potential conflicts, having written a memo in 2017 that Trump used to justify the firing of then-FBI Director James Comey. Comey’s firing, which led Rosenstein to name Mueller as special counsel, was one of the central issues in the obstruction investigation.
“In light of these facts, it becomes all the more important for the public to know the facts about the evidence,” said Barbara McQuade, a former prosecutor who is now a law professor at the University of Michigan.
Barr will almost certainly stop well short of the level of transparency demanded by Democrats in Congress, which could provoke a new legal battle. The chairmen of several Democratic panels have promised to use every tool available, including subpoenas and litigation, to obtain Mueller’s work and if necessary his testimony.
In a sign that Republicans grasp the public preference for disclosure, the House voted 420-0 on March 14 to adopt a nonbinding resolution declaring that Mueller’s full un-redacted report should be provided to Congress and all but disclosures prohibited by law should be made public. Senate Judiciary Chairman Lindsey Graham, a South Carolina Republican and leading Trump loyalist, blocked his chamber from taking up the resolution.
On Monday, though, Graham said the public should “get as much of the report as possible” except for grand jury and classified material, and anything protected by executive privilege.
Barr has long taken an expansive view of executive power. He served as attorney general during President George H.W. Bush’s administration in the early 1990s. After almost two decades as a corporate lawyer, he was in semi-retirement when Trump turned to him after ousting Jeff Sessions as attorney general in November.
Barr, a bearish man with a low-key temperament, has maintained a very low profile since becoming attorney general. The closest thing to a news conference that he’s held was a March 7 announcement of indictments related to fraud on senior citizens — and he took no questions from reporters.
“He will be the leader but he listens to people very carefully, he has an open mind and he is respectful of different opinions,” Larry Thompson, a former deputy attorney general, told the Senate Judiciary Committee in January during Barr’s confirmation hearing. “He respects the traditions of the Department of Justice. He knows the impact that his decisions will have on the men and women who are in the department, who are in the investigative agencies.”
According to Graham, Barr and Mueller’s wives attend Bible study together, and Mueller attended the weddings of two of Barr’s daughters.
The friendship grew out of the time they served together in the Justice Department. They investigated the 1988 bombing of Pan Am Flight 103 together, tracing the attack to the Libyan government. Former Libyan leader Moammar Gadhafi eventually took responsibility for the bombing and paid compensation to the victims’ families.
Barr also was involved in the department’s prosecutions in the early 1990s stemming from the savings and loan crisis, and he resolved a 1991 standoff in Alabama with no loss of life when more than 100 Cubans took hostages at the Talladega federal prison.
Barr said at his confirmation hearing that Trump asked him about Mueller in 2017, when they briefly discussed whether Barr might serve as one of his lawyers handling the Russia probe.
“I said Bob is a straight shooter and should be dealt with as such,” Barr said.
Barr gave conflicting answers during his confirmation hearing about how he would handle Mueller’s final report. He said he would want to be as transparent as possible but that some material may have to be withheld.
Barr also has offered what Democrats say seemed to be a rationale for refusing to disclose any evidence of wrongdoing by Trump: The Justice Department’s policy that a president can’t be indicted while in office.
“If you’re not going to indict someone, then you don’t stand up there and unload negative information about the person,” Barr said. “That’s not the way the Department of Justice does business.”
Given the impassioned public debate over the inquiry that Trump regularly denounced as a “witch hunt” — and despite indictments and convictions of some past Trump aides and advisers — Barr is likely to face sharp criticism and demands for public testimony if he sticks to that position.