Some of you may think that partisan commentators are just looking for stuff that isn’t really there.
No, ladies and germs, clever, weasily language is what lawyers employ to defend guilty clients.
I know. Been there. Done that.
Let me call your attention in particular to this paragraph from the Saletan post, which addresses much the same issue I wrote about previously:
“Absence of such evidence.” One reason to be suspicious of Barr’s conclusions is that in the course of the letter, he tweaks Mueller’s opinion to look more like his own. Mueller’s report, as excerpted by Barr, says “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.” Barr quotes that line and then, in the same sentence, concludes that “the absence of such evidence bears upon the President’s intent with respect to obstruction.” But the excerpt from Mueller’s report doesn’t refer to an absence of evidence. It refers to a presence of evidence, and it says this evidence isn’t enough to prove a crime. Throughout the investigation, this has been a standard Republican maneuver: misrepresenting an absence of proof as an absence of evidence. Barr’s use of this maneuver in his letter is a red flag that he’s writing partisan spin.
Trump does what Trump does: claim victory or vindication, tell lie after lie, attack, insult, and bully. He was doin’ that yesterday, he’s doin’ that today, and he’ll be doin’ that tomorrow.
This afternoon, I am detecting a tendency on the part of some among my posse to be faint of heart.
My first answer is that, if the facts justified a defeatist attitude, then a defeatist attitude might be in order. But you are not reacting to the Mueller report, you’re reacting to the Barr purported precis of the Mueller report. And there is good ground to believe that the two may be quite different.
Secondly, Mueller evidently came up with bupkis that might talk the Trump cultists out of being Trump cultists. But that was not going to happen, anyway.
Thirdly, Mueller and Barr have done absolutely nothing to refute the views of those who despise Trump and all his works, like us.
Finally, that leaves a narrow set of folks in the middle—folks who might vote for Trump, or might vote for Obama, or might vote for the Man in the Moon. I have no earthly idea what these people are thinking. Burrowing into their psyches seems to pose an even greater challenge than grasping why someone might embrace the Cult of Trump.
All that said, I really don’t think most of the low information folks in the squishy middle are going to care about Mueller and Barr, one way or the other. My suspicion is that if they vote in 2020, it will be on economic issues.
I think Scott Turow does an especially good job of making the point that others are making today: it’s criminal to obstruct a governmental investigation, whether or not the thing being investigated turns out to be a crime in and of itself.
Put another way: sometimes you obstruct to hide a crime. Sometimes you obstruct to hide something else. Either way, obstruction is obstruction.
Barr’s conclusion that obstruction can’t be proven beyond a reasonable doubt involves bootstrapping that is utter nonsense in this case. Barr—just like Trump’s lawyer Rudy Giuliani—claims that ordinarily obstruction requires a nexus to an underlying crime. Because Mueller found the evidence insufficient to prove that Trump actively conspired with the Russians to interfere with the election, traditional legal reasoning would say he’s not likely to have committed obstruction either. Barr says, “Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding.” …
Throughout his election campaign and long after, Trump denied that Russia was responsible for the massive interference in our election that Mueller has now concluded occurred. Trump made these denials “despite,” to quote Barr, “multiple offers from Russian-affiliated individuals to assist the Trump campaign.” Aside from any crimes Trump or his campaign committed by being in cahoots with the Russians, there are other clear gains to Trump in hindering the investigation. The most obvious is that the Russian interference, which both Barr and Mueller say the Trump campaign knew about, calls the legitimacy of the 2016 election into question.
With our focus on whether the president is going to jail, we have run past a point that is now undeniable: Donald J. Trump was elected president of the United States after a sustained series of crimes by the Russian government aimed at boosting his chances of winning. Because of the political damage to the president that Russia’s criminal interference posed, he had an obvious reason to terminate the investigation. In other words, he had something to hide, and the Mueller inquiry seems to have concluded that there was plenty of evidence that he hid it.
To argue that no underlying crime means no obstruction is therefore nonsense. That is fallacious reasoning and it impugns Barr’s integrity and his reputation as a lawyer. Worse, it represents a troubling effort to paper over the acknowledged evidence that Mr. Trump committed a crime in public view.
For helpful Talmudic exegeses of the Barr letter, see these morning reads, especially the second:
Lawfare, What to Make of Bill Barr’s Letter
The Language to be Parsed
I focus here on the collusion side, rather than the obstruction side. Barr’s key language is short. Thus spaketh Attorney General Barr:
The report further explains that a primary consideration for the Special Counsel’s investigation was whether any Americans including individuals associated with the Trump campaign joined the Russian conspiracies to influence the election, which would be a federal crime. The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 US presidential election. As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”1
Footnote 1 reads as follows:
“In assessing potential conspiracy charges, the Special Cou7nsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordination” as an “agreement—tacit or express—between the Trump Campaign and the Russian government on election interference.”
“Find” Versus “Establish”
Barr’s own language—paraphrasing or purporting to paraphrase Mueller—is that the investigation did not “find”conspiracy or coordination. But Mueller’slanguage says that the investigation did not “establish”conspiracy or coordination.
Moreover, as indicated by the brackets around “T”—“[T]he”—Barr is cherry picking a part of a sentence from Mueller, not the whole sentence.
When we get the whole sentence, what will it say? Of course I don’t know, but it could well be something along the lines of,
although there was lots of really bad evidence, I didn’t think I could prove conspiracy or coordination beyond a reasonable doubt, therefore I determined that the evidence did not establish conspiracy or coordination.
Or, it could be that, inexplicably, Mueller determined that there was in fact little or no evidence of conspiracy or coordination at all. But if that is the case, then why in hell didn’t Barr quote the whole damn sentence, not just a piece of it?
The Aardvarks have returned from their cruise. (Fortunately, we did not choose a Norwegian destination on the Viking Sky. The Aardvarks do not relish being plucked by helicopter from the deck of a ship without power, bouncing around in the icy seas.)
We have returned just in time for Mr. Mueller to hand over his memorandum—of unknown length, ten pages?, 100 pages?, 1000 pages, no one knows—to Attorney General Barr, and for the latter to prepare a summary of less than four pages.
The occasion seems to call for some commentary, so I will make five brief points.
Mr. Barr’s Book Report and the Aardvark Hypothesis
First, I have previously hypothesized that Barr came to Washington to work out a deal whereby Trump would resign from office in exchange for immunity from prosecution. The document released this weekend does not lend support to my hypothesis, and is generally in tension with my hypothesis, but does not in any sense conclusively disprove my hypothesis. So, we shall see what we shall see.
One Slippery Eel
Two: whatever his motivations and intentions may be, Mr. Barr is an able lawyer and a master of the semantic dodge. These are two ways of saying much the same thing. What he leaves unsaid may well be as important as what he says explicitly. Thus, his weekend piece, though short, will probably bear as much scrutiny as a New Testament scholar would give to one of the more Delphic passages in the Gospel of Thomas. (But that doesn’t mean I’ll offer that level of scrutiny in this post.)
“No Collusion or Coordination,” or, Mueller’s Got Some Splain’ To Do
Three: the Barr book report tells us, in a surprisingly clear cut way, that Mueller found no collusion or coordination between Russia and that Trump campaign. Barr’s summary of Mueller’s conclusion is probably a very shorthand account of what may be a lengthy exposition by Mueller.
There were in fact about a hundred contacts between the campaign and the Ruskies. And quite a few people lied about those contacts. How, then, does Mueller conclude there was no collusion or coordination? We need to see the Mueller report to form an intelligent judgment.
A Blessing in Disguise for Democrats?
Four: some of the talking heads are saying this evening that the no collusion conclusion is a great gift to Democrats, in that they will now be compelled to talk about policy issues like health care and climate change, that people care about, rather than esoteric issues about what amounts to campaign collusion—issues that are muddy, not to mention beyond the ken and beyond the concern of the proverbial man in the street.
I suspect that the talking heads have a pretty good point.
Five: Mueller’s report says that he could have gone either way on obstruction, but left the issue to the Attorney General. At which point, Trump’s Attorney General, in an entirely objective and disinterested distinction between balls and strikes, called it a ball.
Prosecutors are not supposed to prosecute unless they think they are highly likely to meet the difficult beyond-a-reasonable-doubt standard of proof of guilt. Here, Barr’s alleged doubt about the ability to obtain a conviction may have been made on the facts, or on the law, or both. At this point we just don’t know.
I could add a sixth point: the investigation of Trump’s business practices, which look like a poster child for RICO, goes on.
An Interesting Question
Lastly, here’s an interesting little question. Having spent so much effort tweeting against Mueller, will Trump’s perverted mind conclude that he came off as well as he did because he succeeded in threatening and bullying Mueller?
And, having drawn that conclusion, how will that affect Trump’s future behavior?
We’re leaving town for a while. Please try not to destroy the republic while we’re gone. Our journey will not be as long as forty days and forty nights.