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A former prosecutor explains why Barr’s hasty obstruction conclusion should raise red flags

Renato Mariotti on Barr’s rushed process and why Congress should demand more.

Attorney General William Barr leaves his home on March 25, 2019, in McLean, Virginia.
Attorney General William Barr leaves his home on March 25, 2019, in McLean, Virginia.
Chip Somodevilla/Getty Images

The Mueller investigation is done, and all we know so far is what Attorney General Bill Barr has told us in a four-page summary of Mueller’s report.

In many ways, Barr’s summary raises more questions than it answers. For instance, although we know that Mueller did not find convincing evidence of collusion between Russia and the Trump campaign, it’s not clear if the president attempted to obstruct justice or not.

According to Barr, the special counsel’s office “did not draw a conclusion — one way or the other — as to whether the examined conduct constituted obstruction.” Barr wrote that he and Deputy Attorney General Rod Rosenstein determined there was no evidence for obstruction, but until we see the entire report, we have no idea what that decision is based on.

Barr’s decision to rule out obstruction in less than 48 hours after receiving the full report from Mueller surprised former federal prosecutor Renato Mariotti, who now covers legal affairs for Politico. Mueller, Mariotti wrote in a recent piece in Politico, was unable or unwilling to draw any definitive conclusions after nearly two years of investigating, yet Barr was able to make a decision in the span of a single weekend.

What are we to make of that? And what, if anything, can we infer from Mueller’s decision not to weigh in on the obstruction question?

To get some answers, I reached out to Mariotti by phone on Monday morning. I also wanted to know how high the bar is bar establishing collusion or conspiracy, since there is already so much damning evidence of Trump-Russia ties in the public sphere.

Our full conversation, lightly edited for clarity appears below.


Sean Illing

You write in your piece for Politico that Attorney General Bill Barr rushed his decision to absolve Trump of obstruction of justice charges. What do you mean by that?

Renato Mariotti

Here’s what I mean: We know that Mueller conducted a very extensive investigation. Clearly, he was investigating at a rapid pace over the last two years. Barr received the report two days ago, and over the weekend he made a judgment about obstruction of justice that Mueller himself was unable or unwilling to make after two years of investigating.

Barr wrote that he reviewed the special counsel’s report, but that does not imply looking at all the underlying evidence that Mueller assembled over the course of the investigation. Mueller looked at it for almost two years and couldn’t make a definitive decision, so it’s hard to believe Barr had time to examine it all this weekend.

Sean Illing

To be clear, when you say “unwise,” do you mean politically motivated? Or something else?

Renato Mariotti

There are many layers of potential problems here. At its core, no matter what your political beliefs, I think we can all agree that Barr is someone who potentially has the appearance of bias or prejudging the issue of obstruction. If there was someone who was going to make the decision about obstruction, Barr would not be the ideal person, given that he wrote a 19-page single-spaced memo saying that Trump had not obstructed justice before he became attorney general.

Apart from that, Barr or anyone else who made a judgment about obstruction in a couple of days without really digging into the underlying evidence creates the appearance of rushing to make a decision for political reasons.

And third, I’d say that Barr did not offer any analysis or reasoning in the letter that helps us understand his decision. He did state that an “underlying crime” had not been proven as though that were relevant to his decision on obstruction of justice. However, it’s frequently the case that individuals are charged, like Roger Stone, or even convicted, like Martha Stewart, of obstruction of justice without proof of an underlying crime.

So Barr’s decision raises more questions than it answers. And given the weight of the decision he was making, that causes me to question his motivations.

Sean Illing

It’s obvious that Mueller did not want to make a final decision on obstruction of justice. Do you think he was wise to do that or was he too cautious?

Renato Mariotti

I think no matter what Mueller did, he was going to be heavily criticized. And he’ll no doubt be criticized for this. But I think Mueller stands in stark contrast to Barr: Mueller appears to have felt the weight of what he was doing. He understands the massive impact of this investigation on our nation. And he decided that one man should not make that decision.

It’s not what I would have done under the same circumstances, but I understand why Mueller made the decision he made, and I respect it. It’s certainly outside of my experience, because prosecutors are expected to reach conclusions, and they almost always do. But again, this was a pretty extraordinary situation. Mueller clearly thought the American people and perhaps Congress should make these sorts of decisions.

Sean Illing

On the obstruction question, part of the issue here is that the president appears, at least to me, to have used his official functions to obstruct Mueller’s investigation (i.e., by using his legal authority to fire FBI Director James Comey). Is that an unprecedented situation?

Renato Mariotti

It is certainly something that’s never been charged before to my knowledge. There have been arguments that, for example, Richard Nixon did that, but that was ultimately never brought to court. So there’s no legal precedent here.

Now, if we take Barr’s summary letter at face value, he also claims that there are challenging factual issues, and there may be. But I think he would have been better served to have laid out those issues or at least indicated that there were conflicting issues at play and thus why Mueller didn’t reach a clear decision.

Sean Illing

Was it a mistake, in retrospect, for the media and the public to focus obsessively on the collusion issue, which technically isn’t even a crime?

Renato Mariotti

I’ve said from the beginning that collusion is not a crime, and the word doesn’t appear in Mueller’s grant of authority from Rosenstein. And so it really is a question Mueller’s investigation was not designed to answer. I think it’s fair to say that there was a lot of runaway speculation, often by members of the public but also by people who should’ve known better.

I will say that this story was worthy of coverage, and this issue should’ve commanded our attention because these are very serious allegations. The underlying fact of Russia’s interference in our election was justification enough, but also the allegations involving Trump and various campaign members.

But yes, it’s fair to say that too much attention and too much hype was placed on the collusion question.

Sean Illing

Mueller’s decision against collusion is surprising to many people who’ve spent the last two years watching all these stories emerge and seeing various people in Trump’s orbit be charged with crimes. What’s the bar for proving conspiracy or coordination?

Renato Mariotti

I can speak to conspiracy, because I’ve tried a lot of these cases. There you have to prove that someone knowingly entered into an agreement to commit a crime, and that’s very hard to do, especially when there isn’t direct evidence that they did so.

In this case, we certainly know there was a conspiracy among Russian operatives to influence the 2016 election, but the question was always, did any Americans actively and knowingly participate in that conspiracy?

Sean Illing

Well, this is what’s so confusing. We have evidence that the president’s son arranged a meeting with a Russian lawyer at Trump Tower to discuss damaging information about Hillary Clinton that the Russians stole. If that’s not collusion or conspiracy, what the hell is?

Renato Mariotti

It’s a great question. In the emails we have from Donald Trump Jr. about that meeting, it appears that, first of all, he’s expressing his eagerness to receive help from the Russian government. But it’s not clear, however, that he met with someone, and formed an agreement with her, to make that happen.

In other words, he didn’t have an agreement to do anything concrete with her and did not take a substantial step towards joining that conspiracy or aiding their effort in some way. Based on the public record, that’s what we know. Maybe there’s more that we don’t know. But given what we do know, that doesn’t quite meet the threshold for establishing a conspiracy, even though it’s obviously deeply suspicious.

Sean Illing

And this is why we should be careful not to conflate the lack of evidence beyond reasonable doubt with the absence of any incriminating evidence at all.

Renato Mariotti

No question. Just to be clear, when I was a federal prosecutor, I often declined cases where there was significant incriminating evidence and, at times, when I was personally convinced that the person had committed a crime. Our justice system is such that prosecutors only move forward if they can prove someone’s guilty beyond reasonable doubt, and that’s a high bar.

Sean Illing

What’s next? Is this now a political question that Congress will have to resolve?

Renato Mariotti

I expect that Congress will continue its efforts to see the entire Mueller report. They have to do that because Barr has released very little about the investigation, and I don’t think any lawmaker would, or should, take his summary at face value, given the importance of the matters he’s dealing with. And, sadly, I think Barr’s handling of this report will make this process more political than it had to be.

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