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Attorney General William Barr’s misleading case for why Trump didn’t obstruct justice

Barr says Trump tried to remove Mueller, not fire him. That’s bogus.

Attorney General Barr Testifies At Senate Hearing On Russian Interference In 2016 Election Photo by Win McNamee/Getty Images

Attorney General William Barr just offered an extremely flimsy argument for why President Donald Trump didn’t obstruct justice when he asked his White House legal team to remove special counsel Robert Mueller in the middle of his Russia probe.

While testifying Tuesday before the Senate Judiciary Committee about Mueller’s report, Barr fielded a number of questions from Democrats about his handling of the investigation, particularly his conclusion that Trump didn’t obstruct justice even after the special counsel outlined 10 “episodes” in which Trump may have. (Mueller didn’t make his own judgment.)

Sen. Dianne Feinstein (D-CA), the panel’s top Democrat, asked Barr about one of those episodes: Trump telling White House counsel Donald McGahn to remove Mueller.

In his answer, he tried to make a hair-splitting distinction that, while technically possible, would certainly stretch reasonable limits of how to interpret Mueller’s findings.

“There’s something very different between firing a special counsel outright, which suggests ending the investigation,” Barr responded, “and having a special counsel removed for conflict, which suggests you’re going to have another special counsel.”

In other words, Barr isn’t saying that Trump wanted to fire Mueller to end the Russia probe, but rather that Trump didn’t feel Mueller was the right guy to lead it.

All it takes is one quick look at Mueller’s report to find that Barr’s read is probably the wrong one.

What Mueller’s report said about Trump and McGahn

Mueller said Trump reacted strongly to a June 14, 2017, Washington Post report that the special counsel was looking into whether or not the president obstructed justice. Three days later, Mueller noted that “the President called McGahn and directed him to have the Special Counsel removed.”

Mueller continues: “In interviews with this Office, McGahn recalled that the President called him at home twice and on both occasions directed him to call [Deputy Attorney General Rod] Rosenstein and say that Mueller had conflicts that precluded him from serving as Special Counsel.”

Trump said Mueller had a conflict because he once interviewed him to be the FBI director and didn’t pick him, and because Mueller disputed his fees as a member of a Trump-owned golf course. Per Mueller, McGahn and other advisers told Trump that his reasoning on conflicts was “silly” and “not real.”

Still, on one call “McGahn recalled the President telling him ‘Mueller has to go’ and ‘Call me back when you do it,’” according to Mueller’s report.

McGahn didn’t follow through and actually threatened to resign over the situation — saying the president told him to “do crazy shit” — but top Trump aides convinced him to stay.

This is in line with a broader pattern the special counsel uncovered: Trump’s attempts to influence the investigation were “mostly unsuccessful,” Mueller writes, “but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests.”

Experts say Barr’s reasoning has merit, but is ultimately wrong

Again, Barr’s defense is that Trump wasn’t trying to end the probe outright, but was just trying to remove Mueller and perhaps replace him with someone else. Therefore, this episode was more about removing Mueller than firing him.

That is a valid distinction, experts tell me, as long as it meets three conditions:

  1. That there is actually a conflict of interest to have Mueller serve as the special counsel
  2. That the president was clearly trying to avoid improperly influencing the probe
  3. That Trump did intend to appoint a new special counsel

Well, Trump’s own aides thought Trump’s belief that Mueller was conflicted was “silly,” so that’s out. The fact there were 10 possible episodes of obstruction of justice showed Trump took few precautions to appear he wasn’t interfering with the probe. And as of now, there’s no evidence to support the notion that Trump wanted a new special counsel to take Mueller’s place.

So while Barr may genuinely hold a differing view of this episode, some legal experts say he was more likely trying to obfuscate the facts.

His comments “were meant to mislead,” Renato Mariotti, a federal prosecutor from 2007 to 2016, told me. “He is disagreeing with the factual conclusions of the Mueller report.”

That’s not a good look — especially when testifying under oath to Congress.

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