Waiting for the Mueller Report and Its Itsy Bitsy Teenie Weenie Redactions

As I write, we have seen the morning Barr show but have not yet seen the report—that would be the one with the itsy, bitsy, teeny, weenie redactions.

A Good Lawyer Making a Bad Case

The Barr performance this morning was that of a good trial lawyer making an opening statement to the judge and jury, with respect to a very bad case.

The Theology of Conspiracy

I was an antitrust lawyer, so inevitably that’s one of the perspectives I bring to the situation. In antitrust, we were forever dealing with complicated, messy, ambiguous fact patterns and deciding whether those complicated fact patterns should or should not be called a conspiracy. To that end, we applied legal criteria—legal criteria that are, themselves, the subject of much legal debate and “refined” analysis.

Having that perspective, I wait to see what legal criteria Mueller employed to look at a complicated fact pattern and find insufficient evidence of an illegal conspiracy. I can guess and speculate, but of course I won’t, especially at this hour.

A Man is Presumed to Intend the Natural Consequences of His Acts

Applying this well known legal maxim, one thing we can say for sure is that William Barr has acted in a way calculated to generate many, many headlines proclaiming that he has joined the Cult of Trump and become the complete toady.

William Barr knows that his conduct is generating these sorts of headlines.

Therefore William Barr intends that these sorts of headlines will be generated.

If it Walks Like a Duck and Talks Like a Duck …

Or, to change the metaphor, if it looks like a strawberry shortcake and smells like a strawberry shortcake and tastes like a strawberry shortcake, then it’s very probably a strawberry shortcake.

Therefore, it’s entirely understandable that if Bill Barr walks like a Trump toady and talks like a Trump toady, then he’s really a Trump toady.

I still don’t believe the act, though the acting is really good, and the act is becoming more convincing. Maybe even good enough to yank the wool over the Trumpster’s eyes, if such is the intent.

These Days, It’s Hard to Distinguish Between Satire and News

fake news

Andy Borowitz, Putin Almost Done Redacting Mueller Report:

MOSCOW (The Borowitz Report)—After putting in what one associate called a “hellish all-nighter,” the Russian President, Vladimir Putin, is almost finished redacting Robert Mueller’s report in time for its release, on Thursday.

Earlier in the week, the U.S. Attorney General, William Barr, submitted the approximately four-hundred-page document to Putin for his approval, but the Russian President was reportedly “in a state of disbelief” over how much Barr had failed to redact.

Quickly assembling a crisis team at the Kremlin to implement further redactions, Putin told his associates, “Put some coffee on, boys—it’s going to be a long night.”

Is He an Actual Toady, or Does He Just Play One on TV?

Generally, it’s a sign of insanity when you see a pattern that has eluded every smart person in the world but yourself. So if you detect a sign of insanity in me, that’s fine. But I still see what I see.

Among the commentariat, the consternation and puzzlement over Barr’s toadying behavior grows from day to day. See supra.

Right now, folks are perseverating, bigly, on how much Barr is going to redact from the Mueller report. The question is important, and the perseveration is understandable.

But as important as the coming redactions may be, of equally great importance is what part of the Mueller report will NOT be redacted. What will we see? And how bad will it be for Trump?

So, here is what I think may have happened. I think Trump got wind of what the redacted Mueller report will look like. I think he threatened to fire Barr’s sorry ass on twitter, and that right speedily, unless Barr would gin up some headlines about the purportedly rotten oranges of the Mueller report. Thus, when the redacted but still bad report comes out, Trump and his minions will be able to jump up and down with distracting claims about rotten oranges.

And I think Barr did what he had to do.

As you know, I also think Barr came back to Washington to do an as yet unidentified Task X. Barr would have known that he had no hope in hell of accomplishing Task X without sticking around for some months. And you cannot stick around Trump for some months without your reputation going to hell.

Sometimes, to get the job done, a good lawyer has to take a bullet.

No Collusion

Gospel of Thomas

For helpful Talmudic exegeses of the Barr letter, see these morning reads, especially the second:

The Plum Line, Trump won with illicit help. He abused his power. His AG is blocking a full reckoning.

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?

Mr. Barr’s Book Report on the Mueller Opus

Gospel of Thomas

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.

Obstruction, Anyone?

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?