- - Wednesday, May 8, 2019

ANALYSIS/OPINION:

William Barr, the attorney general of the United States, now faces a likely contempt citation for failing to comply with a congressional subpoena and for misleading Congress. This is about the Mueller investigation of Russian interference in the 2016 presidential election. Isn’t the investigation now complete? How did the attorney general’s veracity become an issue and thereby extend the life of the investigation?

Here is the backstory.

When special counsel Robert Mueller completed his 448-page final report of his nearly two-year investigation of Russian interference in the 2016 presidential election, the Trump campaign and its relationships to Russian agents, and the personal efforts of President Donald Trump to impede the investigation, he complied with the federal rules and delivered his report to the attorney general. Mr. Barr examined the report and decided to undertake two approaches to releasing it to Congress and to the public.

The first approach was to summarize its principal conclusions and the second was to redact from public and congressional view materials that federal statutes and court rules prohibit him from making public. So, late on a Sunday afternoon in April, Mr. Barr authored a four-page summary of Mr. Mueller’s conclusions, which related that Mr. Mueller and his team of FBI agents and prosecutors could not establish the existence of a conspiracy between the Trump campaign and Russian agents for the campaign to receive something of value from the Russians. Mr. Barr offered the opinion that this conclusion exonerated Mr. Trump on the conspiracy — what the media falsely called “collusion” — charge.

The second statement in Mr. Barr’s four-page summary was that while Mr. Mueller found evidence of obstruction of justice by Mr. Trump personally, he left the decision of how to proceed with this evidence to Mr. Barr; Mr. Barr then concluded that the president would not be prosecuted.



In the meantime, Mr. Barr and his team began to scrutinize in private every word in Mr. Mueller’s report so as to reveal only what federal statutes and court rules permit to be revealed. While this process was going on, some folks on Mr. Mueller’s team leaked to the media their displeasure with Mr. Barr’s four-page letter because they felt it had sanitized the report and failed to capture the flavor, tone and gravity of the allegations it made against Mr. Trump personally.

After media outlets published the story of this disenchantment, Mr. Mueller himself sent a letter to Mr. Barr essentially objecting to the same matters that some on his team had complained about to the media.

While government officials often disagree with each other, this little spat over whether Mr. Barr’s summary was faithful to Mr. Mueller’s report became important because of the following seemingly innocuous event: When Mr. Barr was testifying before a House subcommittee about his budgetary requests for the Department of Justice in the next fiscal year, he was asked by a member of the subcommittee if he knew anything about any criticisms by members of Mr. Mueller’s team about his four-page summary of Mr. Mueller’s conclusions. He replied, “No, I don’t.”

But of course, Mr. Barr did know because Mr. Mueller told him in his letter of the complaints his office had about the four-page letter. Did the attorney general deceive Congress? The Democratic members of the Judiciary Committee grilled the attorney general later on this, and he offered that a follow-up telephone call between himself and Mr. Mueller dissipated Mr. Mueller’s written complaint. Yet, the fact that Mr. Mueller — a seasoned government official — wrote a letter about this knowing its near certain permanent residence in government files is telling. He made a permanent record of his complaint about Mr. Barr’s sanitized letter, and Mr. Barr hid that record from Congress.

At the same time that all of the above was transpiring, the House Judiciary Committee subpoenaed the full unredacted Mueller report from Mr. Barr, and he dropped the ball again. Instead of challenging the subpoena before a federal judge and asking her to rule on the lawfulness of compliance, Mr. Barr ignored it. This produced calls for the House to hold him in contempt; a largely symbolic gesture, yet an unpleasant one for Mr. Barr.

What’s going on here? It is clear that Mr. Barr’s four-page letter, about which Mr. Mueller complained to Mr. Barr and some of Mr. Mueller’s team complained to the media, was a foolish attempt to sanitize the Mueller report. It was misleading, disingenuous and deceptive. Also, because Mr. Barr knew that all or nearly all of the Mueller report would soon enter the public domain, it was dumb and insulting.

Mr. Barr knows the DOJ is not in the business of exonerating the people it investigates. Yet, he proclaimed in his letter that Mr. Trump had been exonerated. When the report revealed 127 communications between Russian agents and Trump campaign officials in a 16-month period, and the expectations of those officials of the release of Hillary Clinton’s hacked emails, that is hardly an exoneration.

Was Mr. Barr’s testimony before Congress deceptive? In a word: Yes.

In a bit of bitter irony, the statute that the House Democrats now claim Mr. Barr violated is the same obstruction of justice statute that Mr. Mueller says the president violated — engaging in deceptive or diversionary behavior for a corrupt purpose in order to impede a government investigation or inquiry. This is a gravely serious charge against the attorney general. Mr. Barr’s prosecutors regularly prosecute defendants for doing what it now appears Mr. Barr has done. And the president last weekend added fuel to this fire by changing his mind on whether he will allow Mr. Mueller to testify publicly about his report. He now won’t permit it.

History teaches that these unpleasant events — like Watergate and Whitewater — can take on lives of their own, and can often have unintended consequences. But the lesson is always the same: It would be better for all of us if the whole truth comes out and comes out soon.

• Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is a regular contributor to The Washington Times. He is the author of nine books on the U.S. Constitution.

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