SMOKE GETS IN YOUR EYES
I want to reiterate a point I made on Saturday. We still have no idea what the Mueller report actually says.
All we know is what Republican Attorney General William Barr says it says. Barr did what Trump appointed him to do, which was to spin the Mueller report in the most Trump-positive way possible.
Spin, you ask? Where’s the spin?
If you read Barr’s letter to Congress carefully, you’ll spot a couple of red flags.
First, Barr said that Mueller “did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in [its] efforts … to gather and disseminate information to influence the election.”
Listen closely and you’ll hear the sound of goalposts being moved. Mueller’s report failed to find a smoking gun connecting Trump to the Russian government. Golly, I was absolutely sure that Mueller would find video evidence of Trump and Putin signing an agreement to hijack the election. Boy, is my face red.
On the other hand, the Trump campaign was in close and sustained contact with plenty of Russian citizens, including oligarchs known to be Putin’s pals. These are folks who have Vladimir Putin on speed dial. Then there’s the case of Paul Manafort (Trump’s campaign manager, as you’ll recall, not to mention convicted criminal) who was in close and sustained contact with members of the Ukraine government who were, in turn, allied with Putin and Russia.
By insisting that only contacts with Russian government officials count, Barr effectively puts his thumb on the scale on Donald Trump’s behalf. But he didn’t stop there.
On the matter of obstruction of justice, Barr says that Mueller laid out arguments both for and against the charge. Barr cites the “beyond a reasonable doubt” standard, and apparently relies on the fact that Mueller offered evidence on both sides to conclude that the standard hadn’t been met.
I don’t know the standard of proof for obstruction of justice cases, but smoking guns are hard to find. Jonathan V. Last, writing in The Bulwark, said: “The entire idea of the ‘smoking gun’ is really about establishing, and then moving, goalposts.” It’s about setting a standard of proof so high that it’s impossible to reach.
William Barr, like Antonin Scalia before him, is one of those “unitary executive” theorists that Republicans love, as long as one of their own is in the White House. The Dick Cheney biopic Vice, offers an overview of the philosophy, if you’re unfamiliar with it. Basically, Barr is an advocate for unlimited, unchecked, executive power for Republican presidents.
in any event, at least one reputable legal scholar argues that Barr missed the point – probably on purpose. Here’s how Marcy Wheeler of Empty Wheel (link below) describes Barr’s rhetorical sleight of hand.
“At least given what they lay out here, they only considered whether Trump was covering up his involvement in the hack-and-leak operation. It doesn’t consider whether Trump was covering up a quid pro quo, which is what there is abundant evidence of. They didn’t consider whether Trump obstructed the crime that he appears to have obstructed. They considered whether he obstructed a different crime. And having considered whether Trump obstructed the crime he didn’t commit, rather than considering whether he obstructed the crime he did commit, they decided not to charge him with a crime.”
If Adam Schiff (chair of the House Intelligence Committee) confirms Barr’s version of the Mueller report, I’ll believe him. Ditto for other prominent Democrats in Congress who will presumably be given the full report soon. Ditto for competent investigative reporters, who will surely find a way to get their hands on the full report.
Until then, I’ll repeat what I said on Saturday. Let’s wait and see.