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AP Photo/Andrew Harnik
“I’m the captain.”
"WHAT AM I MISSING?"

Five reasons AG Barr’s Mueller testimony sparked more calls for his resignation

By Heather Timmons

In his sworn testimony in front of the Senate Judiciary Committee May 1, William Barr answered five hours of questions, but raised brand new concerns about his conduct and fitness as the US’s top law enforcement official.

During the hearing on Russian interference in the US election, the US attorney general suggested that the White House might have asked him to investigate certain individuals, a breach of historical protocol. He said he hadn’t read the underlying evidence that made up FBI special counsel Robert Mueller’s report, and indicated he wasn’t familiar with critical details about the investigation into the Trump campaign and Russia.

He also said several things that were directly contradicted by the report itself, or by a letter that Mueller sent him on March 27 that was made public today. Barr seems to be repeating a pattern of acting more like Donald Trump’s personal attorney than the top enforcer of US laws, critics said.

Democrats renewed calls for Barr to resign, including Elizabeth Warren, the Massachusetts senator, Kamala Harris, from California (both are running for president), and Richard Blumenthal from Connecticut. Senator Mazie Hirono, from Hawaii, accused him of sacrificing his “once decent reputation for the grifter and liar who sits in the Oval Office.”

These are the main new concerns raised by today’s testimony, which come atop three instances where Barr appears to have misled the public earlier:

Barr appears to have lied to Congress

During Barr’s April 10 testimony to Congress, senator Chris Van Hollen, the Maryland Democrat, asked Barr, “Did Bob Mueller support your conclusion?” He was referring to Barr’s March 24 summary of the Mueller report, which said the special counsel concluded that the Trump campaign did not “conspire or coordinate” with Russia, and didn’t have evidence to press obstruction of justice charges.

“I don’t know whether Bob Mueller supported my conclusion,” Barr told Van Hollen back then.

But Robert Mueller had sent Barr a letter three days after his March 24 summary was released, complaining that Barr had mischaracterized Mueller’s findings. That entire letter was released by the House Judiciary Committee before today’s hearings. It says, in part:

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. We communicated that concern to the Department on the morning of March 25. There is new 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

During the May 1 hearing, Dick Durbin, the Democratic senator from Illinois, read that segment to Barr. “What am I missing?…Attorneys don’t put things in writing unless they’re pretty serious about things…you couldn’t recall that?” Durbin asked, incredulously.

Mueller was really complaining about the press’s representation of the summary, Barr told senators, repeatedly, despite the fact that there’s no mention of the press in the letter.

His relationship with the White House

In a tense back-and-forth with California Democrat Kamala Harris, Barr hesitated when asked whether the White House had asked him to investigate anyone, then stumbled around the question without answering a straight “no.”

“Has the president or anyone at the White House ever asked you to open an investigation into anyone?” Harris asked. Barr asked her to repeat the question, then said he was trying to “grapple with the word ‘suggest.’ “

“I mean there have been discussions of matters out there…they’ve not asked me to open an investigation,” Barr said.

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)

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.