William Barr Has Some Explaining to Do

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After almost two years, the investigation of Special Counsel Robert Mueller has come to an end. Instead of getting to read Mueller’s findings, we received a letter from Attorney General Bill Barr that summarizes what Barr called Mueller’s “principal conclusions.”

Yet in one notable instance where Mueller reached no conclusion after years of investigation—about whether the president obstructed justice—Barr rushed to reach a conclusion in just two days. Barr’s decision to reach his own conclusion on this matter was poor judgment and ensures that Congress will fight tooth and nail to gain access to Mueller’s full report and the evidence underlying it.
Mueller did reach a conclusion regarding what is commonly called “collusion,” if Barr’s letter is accurate. He quoted Mueller as stating that the investigation “did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

If true, that means that Mueller lacked sufficient evidence to prove beyond a reasonable doubt that Trump campaign officials conspired with the Russian government. This is not altogether surprising, given that there was not sufficient public evidence to establish a conspiracy. Even former Trump campaign chairman Paul Manafort’s delivery of internal polling data, while shady, is not itself a crime.

Mueller’s inability to prove conspiracy does not mean, however, that he failed to uncover evidence that would be troubling to many Americans. When I declined to pursue charges as a federal prosecutor, I often did so in the face of very incriminating evidence, due to an inability to prove a key element of the crime beyond a reasonable doubt. The public may be shocked by Mueller’s evidence but should respect his investigation and the conclusions he reached after interviewing 500 people and issuing over 2,800 subpoenas.

But on one important question, obstruction of justice, Mueller did not reach any conclusion. According to Barr, Mueller “ultimately determined not to make a traditional prosecutorial judgment” regarding obstruction and “did not draw a conclusion—one way or the other” regarding obstruction. Mueller stated, according to Barr, that his report does not conclude that Trump “committed a crime” but “also does not exonerate him.”

That is a very unusual decision by Mueller. Federal prosecutors are expected to reach a conclusion, one way or the other, regarding whether an individual should be charged. I always did so when I was a prosecutor, and that is what prosecutors do on a regular basis. Perhaps the greatest question raised by Barr’s letter is why Mueller declined to do so here.

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