Stanford Law’s David Sklansky on Mueller Report and AG Barr Conclusions

The investigation into Russian interference in the 2016 U.S. Presidential election led by Special Counsel Robert Mueller came to an end on Friday, March 22, with a report delivered to Attorney General William Barr. Today, April 18, Attorney General Barr released the report with redactions. In this Q&A Professor David Sklansky, a former federal prosecutor, discusses the report’s findings and inconsistencies with AG Barr’s conclusions.

The Attorney General described the redactions in the version of the report released today as “limited.”  Is that accurate?  How substantial are the redactions?

It’s obviously hard to know how significant the redactions are without seeing what was blacked out.  But it does seem to me that at this point we have the bulk of the report.  We have enough to know most of what Mueller and his team concluded, and why.

David Alan Sklansky 1
Stanford Law Professor David Alan Sklansky

Does the full report match the summary provided by the Attorney General on March 24, and his description of the report at his press conference this morning?

In some respects, yes, but in other respects the Attorney General misrepresented what the Special Counsel said.

How did takeaways from the Attorney General differ from Mueller’s report, particularly regarding Russian interference and the Trump campaign cooperation with Russia?

Barr said Mueller found evidence of Russian “efforts” to interfere in the 2016 election, but Mueller’s actual findings were stronger than that.  Mueller said that the Russians did interfere in the election, and they did so in a “sweeping and systematic fashion.”  That’s literally the second sentence of the Special Counsel’s report.  And Barr was quite wrong to say this morning that Mueller’s investigation showed that neither President Trump nor the Trump campaign cooperated with the Russian’s schemes to interfere in the election.  Mueller said only that his investigation did not “establish” Trump’s campaign conspired or coordinated with the Russians, and explained what he meant by that. He meant that there was insufficient evidence to allow his office “to reach a conclusion with confidence”—not that there was no evidence whatsoever of conspiracy or cooperation, let alone that there was evidence demonstrating a lack of coordination.

What does the report say about obstruction of justice?

Mueller says in his report that he decided not to make a finding about whether the President’s actions constituted obstruction because the policy of the Department of Justice wouldn’t allow a criminal prosecution of the President while he was in office, and so therefore the President wouldn’t have an opportunity to clear his name.  On the other hand, if the evidence allowed a conclusion that the President didn’t obstruct justice, Mueller said he thought it would be appropriate for him to say so.  But the evidence, in Mueller’s view, didn’t allow that conclusion—because there’s lots of evidence that suggests Trump may in fact have obstructed justice.

In fact, Mueller said his investigation “found multiple acts by the P that were capable of exerting undue influence over law enforcement investigations,” efforts that were “mostly unsuccessful” only because his subordinates “declined to carry out his orders or accede to his requests.”  And it’s very hard to read Mueller’s description of the evidence he collected without concluding that the President did, in fact, try to obstruct justice—by, among other things, pressuring the FBI to drop the criminal investigation of former National Security Advisor Michael Flynn; trying to fire the Special Counsel; trying to get former White House Counsel Don McGann to lie about efforts to fire the Special Counsel; trying to limit the scope of the investigation into election interference by the Russians; and pressuring witnesses not to cooperate with federal investigators.  It’s a pretty damning bill of particulars.

But the Barr’s four-page summary of the Mueller report said that Mueller left it to the Attorney General to decide whether the President’s actions constituted the crime of obstruction.  Is that accurate?

Barr seriously misrepresented what the Special Counsel said.  In the four-page summary he released last month, and again in his comments this morning, the Attorney General suggested that Mueller simply didn’t reach a conclusion about obstruction and left it to the Attorney General himself to make that decision.  But the reasons the Special Counsel refrained from making that determination didn’t just apply to him and his office; it applied to the Department of Justice as a whole, including the Attorney General.  And while the Special Counsel refrained, for prudential reasons, from finding that the President obstructed justice, the Special Counsel also was quite explicit that the evidence he collected would not allow a finding exonerating the President from criminal liability—precisely the finding that Barr then went on to make.

Did Mueller address the legal arguments that it can’t be obstruction of justice for the President to exercise his lawful powers under the Constitution?

Yes, he did.  This is a theory that Barr himself advanced in the letter he wrote to the Justice Department and White House last fall, while he was still in private practice.  Barr argued that since the President has the authority, for example, to fire the director of the FBI, it can’t be obstruction of justice for the president to exercise that authority, for whatever reason.  It was an odd letter to write, and it probably meant that Barr should have recused himself from overseeing the Mueller investigation once he was appointed Attorney General.

In any event, Mueller rejected Barr’s theory, and properly so.  It would mean that it wasn’t obstruction of justice for President Nixon to try to shut down the Watergate investigation.  By statute, obstruction of justice requires “corrupt” intent; the courts have interpreted this to mean an intent to secure an improper advantage.  Mueller rightly concluded that a motivation of this kind is what distinguishes a lawful exercise of presidential authority to fire an FBI director, or to limit or shut down an investigation, from an unlawful exercise of such authority.  And he set forth evidence suggesting strongly that Trump’s efforts to shut down the Russia investigation were in fact motivated by improper considerations, including Trump’s worry that the investigation would call the legitimacy of his election into question.

How about the argument that the President can’t have corrupt intent when he was acting out in the open?  Or that it counsels against a finding of obstruction that the President didn’t participate in the underlying misconduct, namely the election interference?

Mueller said that it was, in fact, unusual in an obstruction case for so much of the alleged obstruction to have been carried out in public—on Twitter, for example.  But Mueller also concluded, I think sensibly, that “no principle of law excludes public acts from the scope of obstruction statutes,” and that “[i]f the likely effect of the acts is to intimidate witnesses or alter their testimony, the justice system’s integrity is equally threatened.”

Similarly, although obstruction cases often involve efforts by people to hide their own criminal activity, the case law is clear—as Mueller pointed out—that obstruction of justice doesn’t require involvement in the underlying crime, or even the existence of an underlying crime; it can be motivated by a desire to protect other interests—including a desire not to have a cloud cast on your election.

The Attorney General said the President fully cooperated with the investigation.  Did he?

No.  First of all, he refused to be interviewed by Mueller.  And then there were his efforts to shut down the investigation, to get Mueller fired, and to pressure witnesses not to cooperate with the investigation.  All of this is detailed in Mueller’s report.

Why wasn’t Mueller at the press conference?  And is he free to testify before Congress?

I don’t know why Mueller wasn’t at the press conference.  Barr was asked about that and didn’t answer.  He did say that he has no objection to Mueller testifying.  So I think that will happen.

In the meantime, we have Mueller’s report, and it deserves to be read widely. Barr said this morning that Mueller wrote the report for him, the Attorney General.  That’s not right, either:  it’s written for the country, not for Barr.  And Barr was wrong, as well, to say that reports of this kind are “not supposed to be made public.”  It was Barr’s decision, as Attorney General, whether to make the report public, but there is a long history of releasing reports of this kind, precisely because the public is legitimately interested in knowing whether there is reason to think that the President has engaged in serious wrongdoing.

David Alan Sklansky is the Stanley Morrison Professor of Law and Faculty Co-Directory of the Stanford Criminal Justice Center. He is the author of Democracy and the Police (Stanford University Press 2008), and he writes regularly about criminal procedure and law enforcement.