Wednesday, May 1, 2019

MULTIPLE UPDATES: Extracts From AG Barr's Opening Statement, May 1, 2019

Below are what I regard as the most significant part of AG Barr's prepared statement for his Senate testimony this morning. It's refreshing in this age of disregard for principle generally to see a straightforward presentation of the hallowed ethical principles underlying the prosecutorial function, as well as an enunciation of the relationship of the Special Counsel to DoJ. All emphasis is mine. In my view Barr has done himself proud in this statement, and has provided a signal service to the country. It remains for his yapping critics to feel shame.

Bottom-Line Conclusions

After the Special Counsel submitted the confidential report on March 22, I determined that it was in the public interest for the Department to announce the investigation’s bottom-line conclusions—that is, the determination whether a provable crime has been committed or not. I did so in my March 24 letter. I did not believe that it was in the public interest to release additional  portions of the report in piecemeal fashion, leading to public debate over incomplete information. My main focus was the prompt release of a public version of the report so that Congress and the American people could read it for themselves and draw their own conclusions.

The Department’s principal responsibility in conducting this investigation was to determine whether the conduct reviewed constituted a crime that the Department could prove beyond a reasonable doubt. As Attorney General, I serve as the chief law-enforcement officer of the United States, and it is my responsibility to ensure that the Department carries out its law-enforcement functions appropriately. The Special Counsel’s investigation was no exception. The Special Counsel was, after all, a federal prosecutor in the Department of Justice charged with making prosecution or declination decisions. 

The role of the federal prosecutor and the purpose of a criminal investigation are well-defined. Federal prosecutors work with grand juries to collect evidence to determine whether a crime has been committed. Once a prosecutor has exhausted his investigation into the facts of a case, he or she faces a binary choice: either to commence or to decline prosecution. To commence  prosecution, the prosecutor must apply the principles of federal prosecution and conclude both that the conduct at issue constitutes a federal offense and that the admissible evidence would probably  be sufficient to obtain and sustain a guilty verdict by an unbiased trier of fact. These principles govern the conduct of all prosecutions by the Department and are codified in the Justice Manual.

The appointment of a Special Counsel and the investigation of the conduct of the President of the United States do not change these rules. To the contrary, they make it all the more important for the Department to follow them. The appointment of a Special Counsel calls for particular care since it poses the risk of what Attorney General Robert Jackson called “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” By definition, a Special Counsel is charged with investigating particular  potential crimes, not all potential crimes wherever they may be found. Including a democratically elected politician as a subject in a criminal investigation likewise calls for special care. As Attorney General Jackson admonished his United States Attorneys, politically sensitive cases demand that federal prosecutors be “dispassionate and courageous” in order to “protect the spirit as well as the letter of our civil liberties.”

The core civil liberty that underpins our American criminal justice system is the  presumption of innocence. Every person enjoys this presumption long before the commencement

of any investigation or official proceeding. A federal prosecutor’s task is to decide whether the admissible evidence is sufficient to overcome that presumption and establish guilt beyond a reasonable doubt. If so, he seeks an indictment; if not, he does not. The Special Counsel’s report demonstrates that there are many subsidiary considerations informing that prosecutorial  judgment—including whether particular legal theories would extend to the facts of the case and whether the evidence is sufficient to prove one or another element of a crime. But at the end of the day, the federal prosecutor must decide yes or no. That is what I sought to address in my March 24 letter.


Obstruction of Justice

In Volume II of the report, the Special Counsel considered whether certain actions of the President could amount to obstruction of justice. The Special Counsel decided not to reach a conclusion, however, about whether the President committed an obstruction offense. Instead, the

report recounts ten episodes and discusses potential legal theories for connecting the President’s actions to the elements of an obstruction offense. After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that, under the principles of federal prosecution, the evidence developed by the Special Counsel would not be sufficient to charge the President with an obstruction-of-justice offense. 

The Deputy Attorney General and I knew that we had to make this assessment because, as I previously explained, the prosecutorial judgment whether a crime has been established is an integral part of the Department’s criminal process. The Special Counsel regulations provide for the report to remain confidential. Given the extraordinary public interest in this investigation, however, I determined that it was necessary to make as much of it public as I could and committed the Department to being as transparent as possible. But it would not have been appropriate for me simply to release Volume II of the report without making a prosecutorial judgment. 

The Deputy Attorney General and I therefore conducted a careful review of the report, looking at the facts found and the legal theories set forth by the Special Counsel. Although we disagreed with some of the Special Counsel’s legal theories and felt that some of the episodes examined did not amount to obstruction as a matter of law, we accepted the Special Counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the Special Counsel in reaching our conclusion. We concluded that the evidence developed during the Special Counsel’s investigation is not sufficient to establish that the President committed an obstruction-of-justice offense. 

* * * 

The responsibility of the Department of Justice, when it comes to law enforcement, is to determine whether crimes have been committed and to prosecute those crimes under the principles of federal prosecution. With the completion of the Special Counsel’s investigation and the resulting prosecutorial decisions, the Department’s work on this matter is at its end aside from completing the cases that have been referred to other offices. From here on, the exercise of responding and reacting to the report is a matter for the American people and the political process. As I am sure you agree, it is vitally important for the Department of Justice to stand apart from the  political process and not to become an adjunct of it.

UPDATE 1: Not only is Barr, like, totally not backing down, some of his remarks will leave Dems in hysterics as they ponder the implications. Try this one on for size:

Undercover Huber‏ 
“That is the account that has been given in the past to how it got going” 
— AG Barr on whether @GeorgePapa19 really sparked the FBI counterintelligence investigation

8:37 AM - 1 May 2019

Uh oh! Does that mean he doesn't buy into accounts that were "given in the past"? That he wants to find the real truth? OMG!

UPDATE 2: Oh my, tell it like it is, Bill--speaking truth to hypocrisy. Dem heads must be exploding:

Sean Davis

Grassley: Was it the special prosecutor's job to make prosecutorial recommendations or declinations, rather than pass the buck to the AG?
Barr: Yes, we believe that was his job. If he didn't want to make a decision on an issue, he shouldn't have investigated it.
8:08 AM - 1 May 2019

UPDATE 3: Oh really?

Undercover Huber‏

“We have multiple criminal leak investigations under way”
8:10 AM - 1 May 2019

UPDATE 4: Whoa--this is big! Mueller: Memo to self, don't PO Barr:

 Undercover Huber‏

Mueller clearly wanted to give Barr a report he couldn’t release without weeks of work to redact grand jury and classified material.
This would leave a vacuum between delivery to Barr and the public release of the report.

Then Mueller could demand his own summaries be released.

Barr testifies that Mueller didn’t have an explanation for why he refused to reach a prosecutorial decision on obstruction, despite being asked three times about it by Barr in March.

Wow! I call that unloading on Mueller.

UPDATE 5: More vintage Barr--doesn't get personal re Mueller, but dismisses him with single word answers:

Jeff Carlson‏

12) Graham: Do you think he [Mueller] did a thorough job? 
Barr: Yes and I think he did a thorough job. And had adequate evidence to make the calls.
13) Graham: Do you think the president's campaign in 2016 was thoroughly looked at in terms of whether or not they colluded with the Russians. 
Barr: Yes.
14) Graham: The answer is "No" according to Bob Mueller. 
Barr: That's right.
15) Graham: He couldn't decide about Obstruction. You did. Is that correct? 
Barr: That's right.
16) Graham: Do you feel good about your decision? 
Barr: Absolutely. 
Graham: Thank you very much.

UPDATE 6: Barr--color him unimpressed:

Undercover Huber‏

BLUMENTHAL: Let me finish my question.
BARR: You didn’t let me finish my answer.
10:48 AM - 1 May 2019


Paul Sperry‏

BREAKING: AG Barr testified today that "I'm not going to back off the word spying" to describe covert intelligence operations launched against the Trump campaign and presidential transition, particularly when such secret surveillance is "unauthorized and inadequately predicated."
9:04 AM - 1 May 2019

UPDATE 8: Perfect. McCarthy re Mueller's letter--Diva noise:

Andy McCarthy 

So he wasn’t saying the letter was inaccurate, but was worried about media coverage and whether his narrative would dictate it. Story of the whole investigation. We can read the report ... the rest is diva noise.

7:46 PM - 30 Apr 2019

UPDATE 9: From Danang Dick Blumenthal's questioning. Danang Dick asks whether any notes were taken memorializing Barr's phone conversation with Mueller. Then:

Danang Dick: Can we have those notes? 
Barr: No 
Danang Dick: Why? 
Barr: Why should you have them?

UPDATE 10: In response to a question from Sen. Tillis regarding IG Horowitz' investigation, Barr responded:

I don’t want to be too specific; I talked to Mike Horowitz a few weeks ago about it, and its focused on the FISA, the basis for the FISA, and the handling of the FISA application. But by necessity it looks back a little bit earlier than that.  The people I have helping me with my review will be working very closely with Mr. Horowitz.

Hmmm. What would that "a little bit earlier" involve? Possibly the predication for the investigation itself which was the vehicle for the FISA application, IOW, Crossfire Hurricane, since the probably cause for the FISA application would be largely based on the predication for the investigation. And that gets us into Steele dossier territory, Alexander Downer territory, and so forth.

UPDATE II: John Hinderaker:

I am not up on the stages of grief, but the Democrats are in one of them, grieving through their loss of the belief that Robert Mueller would deliver them from the illegitimate Trump presidency. They can’t quite give it up. Thus, when they view the slightly-redacted Mueller report–far less than one percent is blacked out, and Congressmen can view the unreacted version at their leisure–they are like the boy in the old joke. They are convinced there must be a pony in there somewhere.


  1. A strong letter, and very clear cut.

    Mueller's refusing to decide on the obstruction was an abdication of the duty he took on. I think it pretty clear that he didn't really believe the obstruction angle was valid either- neither Trump nor his staff was guilty of the crime being investigated, and the investigation was not obstructed in any way. Mueller's abdication was a political maneuver, and a shameful one at that. I don't think Mueller will agree to testify before Congress, but I hope he does- it will be easy to make him out as a fool since he won't have an easy way to explain that refusal to make a judgment that looks honest.

    1. "A strong letter, and very clear cut."

      I think so. Unapologetically principled--as expected. Daring anyone to take issue.

      "Mueller's refusing to decide on the obstruction was an abdication of the duty he took on."

      Precisely. While Barr doesn't say that explicitly, that judgment on Mueller is clear throughout. Totally a political maneuver.

      In these snippets Barr exposes Mueller's lack of integrity for all to see:

      Once a prosecutor has exhausted his investigation into the facts of a case, he or she faces a binary choice: either to commence or to decline prosecution.

      ... at the end of the day, the federal prosecutor must decide yes or no. That is what I sought to address in my March 24 letter.

      The Special Counsel decided not to reach a conclusion, ...

      ... we had to make this assessment because, as I previously explained, the prosecutorial judgment whether a crime has been established is an integral part of the Department’s criminal process.

      The responsibility of the Department of Justice, when it comes to law enforcement, is to determine whether crimes have been committed and to prosecute those crimes under the principles of federal prosecution.

  2. On going through Barr's testimony of this morning, it becomes clear that he has no real respect for Mueller any longer.

    It becomes clearer to me by the day that Rosenstein told Mueller last Fall that he would not support an indictment for obstruction. Without that support, Mueller wasn't willing put his name to an indictment based on the evidence he had. I found it very interesting that Barr claimed that he pressed Mueller on the matter, and Mueller wouldn't budge on it- and I believe Barr on this. I think what probably irritated and surprised Mueller was Barr's decision to explicitly decide the matter on obstruction, using Rosenstein to back it up. I think it likely Mueller underestimated Barr, and thought that Barr would do nothing of the kind other than point out that Mueller refused to make a recommendation himself- thus Mueller's whining letter.

    1. Yes, I think Team Mueller thought they had Barr somehow boxed in with their "can't exonerate" nonsense. But Barr is like Honey Badger--he just don't care. I really hafta wonder whether Barr EVER had much, if any, respect for Mueller. At this point, I suspect his attitude is pretty much one of contempt. In his responses he certainly gives no indication that he cares what Mueller thinks. I think Mueller, if he testifies to the House, would do well to be cautious. He could regret angering Barr.

      And re those multiple criminal leak investigations, nothing would surprise me less than to learn that Andrew Weissmann is the subject of one of them.

  3. Mr. Wauck,

    You are on fire today!!! Bravo, Sir.

    Very good summation. This is my first chance to look at the Barr testimony and I wanted to come here first before I entered never-never land (i.e. Democrat/ABC/CBS/NBC/CNN/NYT/WaPo world.)

    1. Some people--like Dem senators--never learn. They had nothing to gain by trying to challenge Barr.

  4. How do you win against a bully" You call his bluff.

  5. Paul Mirengoff:

    What’s going on here, I think, is that Democrats are trying to generate as much controversy on as many fronts as possible. A House Judiciary Committee hearing with Barr wouldn’t serve that purpose. Senate Democrats have already made as much hay as is possible on the phony issue of “discrepancies” between Mueller’s report and Barr’s memo.

  6. Those Democratic senators were both disgusting and stupid. The whole point of what may have been a coordinated attempt at character assassination was to utterly discredit Barr, to preempt any criminal findings he might come forward with in his investigations. Hence, the calls to resign or recuse himself. Barr's shut down of that moron Blumenthal when he asked about phone conversation notes was priceless.

    Round one: Barr by TKO.

    1. Right, and this is all the more reason he needs to forge ahead. Staying put isn't an option because it's really defeat.