While the attorney general is appointed by the president, well-established historical norms are intended to maintain independence between the enforcement of US laws and the president’s political agenda. “Every administration from Carter to Trump has placed [restrictions] on communications between DOJ (including the FBI) and the White House concerning law enforcement investigations and other matters,” as Jack Goldsmith, the Harvard Law professor and co-founder of LawFare wrote in January of 2018.

He mischaracterizes Mueller’s decisions

Barr said he didn’t know why Mueller decided not to rule whether Trump had obstructed justice or not,  even though the special counsel identified 10 different instances where obstruction may have occurred.

“We first heard that the Special Counsel decision not to decide the obstruction issue at a March 5 meeting,” Barr said. “We were surprised,” he added, and “asked him a lot about the reasoning.”

Barr made the decision obstruction of justice had not occurred, in part, because “I’m the captain,” he said.

Mueller’s report specifically lays out the Office of Legal Counsel’s analysis that Congress has the legal right to pursue obstructive conduct:

Mueller report page 382 (pdf)
Mueller report page 382 (pdf)

The Mueller report also says that the Office of Legal Counsel (OLC) opinion “concludes that a sitting President may not be prosecuted,” but “recognizes that a criminal investigation during the President’s term is permissible.” Additionally, the president “does not have immunity after he leaves office,” the report says, and “if individuals other than the President committed an obstruction offense, they may be prosecuted at this time.”

He was unaware of critical findings in the report

Cory Booker, the New Jersey senator, expressed his concern about the “over 200 connections between a presidential campaign, and a foreign power, sharing information” detailed in the report, referring to multiple exchanges made between the Trump campaign and Russia.

“What information was shared?,” Barr asked.

“Polling data, Sir, I can show you the page,” Booker said.

The report makes multiple references to Trump campaign chairman Paul Manafort and his deputy Rick Gates sharing internal polling data and information on contested states with Konstantin Kilimnik, an alleged Russian spy who Mueller has indicted.

In one case, the report states, “in accordance with Manafort’s instruction, [Gates] periodically sent Kilimnik polling data via WhatsApp; Gates then deleted the communications on a daily basis.”

In another exchange, Barr was apparently ignorant of an Australian diplomat’s allegations that started the original FBI probe in the first place—a “remarkable admission” as the Washington Post points out.

Barr didn’t read the underlying evidence

Mueller’s approximately 450 page report was based on a two-year investigation, one that likely generated tens or hundreds of thousands of pages of evidence, including interview transcripts, e-mails, travel records, and schedules.

Harris, a former prosecutor, also grilled Barrr about whether he or anyone in his office had read any of the underlying evidence in the Mueller report, and when he said no, why not. It would be a reasonable assumption even in a less high-profile case, Harris alleged.

“As the attorney general of the United States, you run the Department of Justice,” Harris said. “If in any US attorney’s office around the country, the head of that office was being asked to make a critical decision…do you accept them making a charging decision to you if they had not read the evidence?” Harris asked.

So…what happens next?

Despite the questions raised by Barr’s testimony that could potentially be cleared up by Mueller, Senate Judiciary chair Lindsey Graham of South Carolina, a Republican, said today he wouldn’t call for him to testify, telling reporters afterward “It’s over.”

The House Judiciary Committee has asked Barr to testify tomorrow, but the attorney general is refusing to comply because he objects to its terms. The House wants Barr to be subject to questioning from Congressional aides who are lawyers, not just elected representatives, and is threatening to hold him in contempt if he doesn’t show.

The committee is also asking Mueller to testify.

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