Barr says he disagreed with Mueller's assertion that he should not make obstruction call
WASHINGTON -- Attorney General William Barr told the Senate Judiciary Committee on Wednesday that he disagreed with special counsel Robert Mueller's decision not to determine whether President Donald Trump obstructed justice.
In his report, Mueller wrote that he believed a Justice Department guidance memo that says a sitting president cannot be charged with a crime should be interpreted to mean that prosecutors should not state whether the president broke the law and therefore would face charges if he were not in office.
Barr appeared skeptical of that reasoning, indicating that his confusion as to how Mueller came to that conclusion led him to omit that finding from his March 24 letter summarizing Mueller's primary conclusions.
"I didn't try to put words in his mouth," Barr said.
Barr said he thought that if Mueller did not think he could state whether he thought the president committed a crime, then he should not have investigated whether the president committed a crime. "That was the time to pull up," he said.
In his report, Mueller explained that he thought it was appropriate to investigate to "preserve the evidence when memories were fresh and documentary materials were available."
Wednesday was the first opportunity for lawmakers to question Barr directly since he released a redacted version of Mueller's 448-page report on April 18. It also followed reports of Mueller's March 27 letter to Barr and a phone call between them the following day that revealed the depth of disagreement between two longtime colleagues and friends as they handled the legally and politically fraught task of investigating the president over possible crimes.
At the time Mueller's letter was sent to Barr, the attorney general had days prior announced that Mueller did not find a conspiracy between the Trump campaign and Russian officials seeking to interfere in the 2016 presidential election. In his memo to Congress, Barr also said that Mueller had not reached a conclusion about whether Trump had tried to obstruct justice, but that Barr reviewed the evidence and found it was insufficient to support such a charge.
On Wednesday, in a tense exchange with Sen. Dick Durbin, D-Ill., Barr tried to assert that Mueller was more upset with media coverage of his work than the attorney general's characterization of it.
The suggestion seems to run counter to the frustrated letter Mueller wrote Barr after Barr released what he termed Mueller's "principal conclusions" March 24. Barr, though, said that in a phone call with Mueller after he received the letter, "Bob told me that he did not have objections to the accuracy."
"My understanding was his concern was not the accuracy of the statement of the findings in my letter, but that he wanted more out there to provide additional context to explain his reasoning and why he didn't reach a decision on obstruction," Barr said.
Barr also said that Mueller's letter followed days of negative media coverage about the report, and suggested that there might be a connection.
"My view of events was that there was a lot of criticism of the special counsel for the ensuing few days, and on Thursday, I got this letter," he said.
One of the most explosive episodes detailed in Mueller's report had to do with former White House counsel Donald McGahn, and the president's attempt to have McGahn order Mueller's removal from office. By McGahn's telling -- which the special counsel found credible -- Trump told McGahn to contact Deputy Attorney General Rod Rosenstein and have him fire Mueller over alleged conflicts. Trump then tried to get McGahn to write a statement saying that that did not happen, according to Mueller's account.
Sen. Dianne Feinstein, D-Calif., pressed Barr: How could that episode -- effectively trying to get a witness to lie -- not constitute obstruction? Barr was unequivocal.
"We felt that that episode, the government would not be able to establish obstruction," he said.
By Barr's telling, McGahn had alleged that Trump wanted to have Rosenstein remove Mueller because, in his view, Mueller had a conflict of interest. He noted that the president disputes that he actually wanted Mueller removed. But no matter the case, Barr said, Trump's wanting to remove Mueller over conflicts would not necessarily be legally problematic.
"There's something very different between firing a special counsel outright … and having a special counsel removed for conflict, which suggests you're going to have another special counsel," Barr said.
Barr also said the president did not think he was telling McGahn to effectively write a false statement, noting that McGahn had already talked to Mueller's investigators when Trump is said to have made the request of him.
"You still have a situation where the president essentially tries to change the lawyer's account in order to prevent further criticism of himself," Feinstein said.
"Well, that's not a crime," Barr responded.
"So you can, in this situation, instruct someone to lie?" Feinstein said.
"To be obstruction of justice, the lie has to be tied to impairing the evidence in a particular proceeding," Barr said.
Barr's telling of the facts was very favorable to Trump. He suggested that "if the president is being falsely accused, which the evidence now suggests that the allegations against him were false," firing Mueller would not necessarily be problematic.
"That is not a corrupt motive for replacing an independent counsel," Barr said.
Barr told the panel that he was "surprised" Mueller had left the decision on whether Trump attempted to obstruct justice to him, noting that the special counsel had been appointed "for the purpose of making that judgment."
Barr added that he found it "confusing" that Mueller had extended and expanded the scope of his probe to look into "additional episodes … involving the president."
"Why were those investigated if at the end of the day you weren't going to reach a decision on them?" Barr said.
The attorney general added that he was "absolutely" confident in his decision not to pursue Trump for obstruction of justice and how he presented the report -- though he suggested that Mueller had disagreed with "a few judgment calls" about redacting information to protect the reputation of unindicted figures.
Barr's testimony suggested deeper rifts between the attorney general and special counsel than he has previously indicated existed.
He also affirmed Sen. Lindsey Graham's conviction that there should be an investigation of a "lack of professionalism" at the FBI during its probe of Hillary Clinton's emails, and scrutiny of whether the FBI abused the surveillance application process.
Also Wednesday, Barr told senators that he hoped his review of the FBI's conduct would turn up more intelligence collection than "a single confidential informant and a FISA warrant" -- suggesting it was "anemic" to rely on just that much information in a counterintelligence probe.
"It strikes me as a fairly anemic effort, if that was the counterintelligence effort designed to stop the threat as its been represented," Barr said.
Barr told Sen. Mike Lee, R-Utah, that he did not know whether former Trump campaign adviser Carter Page had been under surveillance while he was working for the Trump campaign. The surveillance applications for Page that have been reported began after Page left the Trump campaign.
Barr refused to go into more detail about the FBI's surveillance practices, "because that's currently under investigation" by the Justice Department's inspector general.
Earlier, Barr also affirmed Graham's conviction that the "lack of professionalism in the Clinton email investigation" is also something that should be scrutinized.
Among the Mueller witnesses lawmakers are eager to hear from is former White House counsel Donald McGahn, who was at the center of the episodes of possible obstruction of justice that Mueller explored. But Barr suggested Wednesday that they should not count on his testimony.
Barr noted of McGahn that the White House had not "waived executive privilege" -- even though McGahn was allowed to talk extensively to Mueller's team about potentially privileged matters, and Trump allowed the material he provided to be revealed in Mueller's report. Barr would not commit to saying that the former White House lawyer would be allowed to testify.
"That's a call for the president to make," Barr said.
Barr also told senators that he has already assigned members of his staff to review allegations that there was "spying" conducted on the Trump campaign before the 2016 election and that he anticipates reporting to Congress at the conclusion of that inquiry.
Barr's comments came in response to questions from Sen. Charles Grassley, R-Iowa, who asked whether the Justice Department has begun a review to determine whether surveillance conducted of anyone associated with Trump's campaign was properly predicated.
In a previous congressional appearance, Barr made waves when he said he agreed that there had been "spying" on Trump's campaign. Barr indicated that he has assigned staffers to review the issue, as well as more broadly how the FBI decided to begin a counterintelligence investigation related to Trump's campaign in summer 2016.
Asked to commit to sharing the results of the review with Congress, Barr said "it's a little early," but indicated that "I envision some kind of reporting at the end of this."