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There Was No Legal Reason for Barr to Withhold Mueller’s Executive Summaries … But He Did


Special Counsel Robert Mueller confirmed in a March 27 letter to Attorney General William Barr that the “process need not delay the release” of the executive summaries for Volumes I and II of his Russia Report, as the necessary redactions required by law had already been completed. That was three days after Barr released a four-page letter detailing Mueller’s “principal conclusions”; Mueller’s executive summaries, however, were not revealed until April 18, roughly 3 1/2 weeks later, when the rest of the redacted version of the full report went public.

As you may have already heard, in the very same letter, Mueller expressed concerns that Barr’s letter “did not fully capture the context, nature, and substance” of his office’s “work and conclusions.” Mueller also said that he expressed those concerns on March 25, the day after Barr decided to release his own letter.

That’s not all, though. Mueller’s March 27 letter said that the executive summaries were “in a form that can be released to the public consistent with the legal requirements and Department policies,” and he requested that Barr “provide these materials to Congress and authorize their public release at this time [emphasis ours].”

Mueller made sure to mention that he “reiterated” on March 5 and March 24 that the “executive summaries of our two-volume report accurately summarized” his office’s conclusions. After saying that Barr’s letter threatened to undermine the public’s confidence in the handling of the investigation, Mueller said that there was no reason to delay the release of the executive summaries.

DOJ spokeswoman Kerri Kupec confirmed Tuesday night that Mueller was particularly concerned about the representation of the obstruction volume. Read these next lines from Mueller’s letter with that in mind:

While we understand that the Department is reviewing the full report to determine what is appropriate for public release–a process that our Office is working with you to complete–that process need not delay the release of the enclosed materials [i.e. exec summaries].  Release at this time would alleviate the misunderstandings that have arisen and would answer congressional and public questions about the nature and outcome of our investigation.

Instead, the “misunderstandings” Mueller is referring to were allowed to fester for nearly a month, even though Mueller noted that Barr had the authority to “alleviate” this by citing the following legal authority [28 CFR § 609(c)]:

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions. All other releases of information by any Department of Justice employee, including the Special Counsel and staff, concerning matters handled by Special Counsels shall be governed by the generally applicable Departmental guidelines concerning public comment with respect to any criminal investigation, and relevant law.

As Law&Crime noted before, executive summaries from independent prosecutions past (Iran-Contra, Whitewater) contained particularly damaging and acute information.

If Mueller’s introduction and executive summary on obstruction had gone public as he requested, the public would have been privy to Mueller’s description (rather than Barr’s) of the “considerations that guided [the] obstruction-of-justice investigation”; the Trump Campaign’s “response to reports about Russian support for Trump”; President Donald Trump‘s “conduct involving FBI Director [James] Comey and Michael Flynn“; Trump’s “reaction to the continuing Russia investigation”; Trump’s “termination of Comey”; the “appointment of a Special Counsel and efforts to remove him,” including efforts by Trump; “Efforts to curtail the Special Counsel’s investigation”; “Efforts to prevent public disclosure of evidence”; “Further efforts to have the Attorney General [Jeff Sessions] take control of the investigation”; “Efforts to have McGahn deny that the President had ordered him to have the Special Counsel removed”; “Conduct towards Flynn, [Paul] Manafort“; “Conduct involving Michael Cohen“; “Overarching factual issues”; statutory and constitutional defenses raised by the president and his lawyers; and Mueller’s own words on his conclusion.

Compare, for instance, the half-quote Barr cited–“while this report does not conclude that the President committed a crime, it also does not exonerate him”–to the conclusion Mueller said was ready to be consumed by the public:

Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

In prepared remarks released Wednesday, Barr said that he and Deputy Attorney General Rod Rosenstein determined that it “would not have been appropriate for me simply to release Volume II [about possible obstruction of justice] of the report without making a prosecutorial judgment.”

Barr and Rosenstein’s prosecutorial judgment was made public on March 24 in the four-page letter in question. In it, they said the evidence “wasn’t sufficient” for an obstruction of justice charge. Why the wait until April 18, then?

It’s worth noting that the rumblings in the press from members of Mueller’s team went public for the first time on April 3. The reporting basically mirrored Mueller’s expressed concerns:

Some members of Mr. Mueller’s team are concerned that, because Mr. Barr created the first narrative of the special counsel’s findings, Americans’ views will have hardened before the investigation’s conclusions become public.

Mr. Barr has said he would move quickly to release the nearly 400-page report but needed time to scrub out confidential information. The special counsel’s investigators had already written multiple summaries of the report, and some team members believe that Mr. Barr should have included more of their material in the four-page letter he wrote on March 24 laying out their main conclusions, according to government officials familiar with the investigation. Mr. Barr only briefly cited the special counsel’s work in his letter.

[Image via Alex Wong/Getty Images]

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Matt Naham is the Senior A.M. Editor of Law&Crime.