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Yes, Trump Obstructed Justice. And William Barr Is Helping Him Cover It Up.

The attorney general's take on the Mueller report goes through contortions to avoid charging the president with a crime.

Alex Wong/Getty Images

In a letter to House and Senate leaders on Sunday, Attorney General William Barr revealed that he would not charge President Trump with obstruction of justice over his efforts to thwart the investigation into whether his campaign conspired with Russia to swing the 2016 election. In order to do so, Barr performed a remarkable gimmick that allowed him to not only break promises he made during his confirmation process, but also gloss over the crimes that Trump is suspected of committing.

It is widely believed that Barr had already categorically ruled out charging a president with obstruction. In a June 2018 memo, shared with Trump’s lawyer before his nomination, Barr argued that the theory of obstruction he believed Special Counsel Robert Mueller to be adopting would not be proper. But in that very same memo—on the very first page!—Barr conceded, “Obviously, the President … can commit obstruction in [a] classic sense of sabotaging a proceeding’s truth-finding function.” Barr envisioned that if a president “suborns perjury, or induces a witness to change testimony … then he, like anyone else, commits the crime of obstruction.”

That’s important, because we know that Trump has been involved in getting his aides to lie. His own lawyer, Jay Sekulow, reportedly edited the prepared statement Trump’s longtime personal attorney Michael Cohen gave to Congress about an effort to build a Trump Tower in Moscow. Cohen goes to prison in May, in part, for telling lies that Sekulow reviewed.

And Trump has repeatedly dangled pardons to subordinates under investigation, reportedly including former National Security Advisor Mike Flynn, former campaign chair Paul Manafort, and Cohen. Indeed, in a hearing in February, Mueller prosecutor Andrew Weissmann argued that Manafort lied about the details of sharing Trump campaign polling data with the Russian political operative Konstantin Kilimnik on August 2, 2016—knowing that the data would be passed on to others including other Russians—specifically to “augment his chances for a pardon.”

In Barr’s confirmation hearing in January, Senator Amy Klobuchar asked him whether a president “persuading a person to commit perjury [or] convincing a witness to change testimony would be obstruction.” He said yes, both would.

And yet he just decided that a president who has apparently done both of those things did not commit obstruction of justice. Why?

Controversially, Mueller didn’t decide whether Trump obstructed justice. His report stated, “[W]hile this report does not conclude that the President committed a crime, it also does not exonerate him.” Instead, Mueller provided Barr with the evidence for and against charging Trump with obstruction, leaving the decision up to the attorney general.

The contortions Barr goes through in his letter to renege on his confirmation hearing promises are extraordinary.

First, Barr describes the conclusions about the main crimes he says that Mueller investigated. “[T]he Special Counsel did not find that any U.S. person or Trump campaign official or associate conspired or knowingly coordinated with the IRA in its efforts,” Barr wrote. (The IRA, or Internet Research Agency, is a Russian troll farm with ties to the Kremlin.) He continued, “The Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in [its] efforts ... to gather and disseminate information to influence the election.”

This language doesn’t even bother to exonerate Trump’s associate Roger Stone, who during the campaign was in cahoots with WikiLeaks as it dumped Russian-hacked emails that damaged Hillary Clinton’s campaign. Barr’s statements only pertain to the Russian government, not Russian individuals or WikiLeaks or anyone else. This is a crucial distinction, given that we know the Trump campaign knew of and encouraged Stone’s coordination with WikiLeaks.

In his testimony to Congress, Cohen revealed that Stone called Trump around July 19, 2016, to tell him about the upcoming WikiLeaks dump. “Wouldn’t that be nice,” Cohen describes Trump responding. After the July 22 release of the emails, “a senior Trump Campaign official was directed,” Stone’s indictment describes, without saying who did the directing, “to contact STONE about any additional releases and what other damaging information” WikiLeaks had on the Clinton campaign. In October 2016, WikiLeaks released emails stolen from Clinton campaign chair John Podesta, deflecting attention away from a damning video showing Trump making sexually abusive comments; in response, “an associate of [a] high-ranking Trump Campaign official sent a text message to STONE that read ‘well done,’” the indictment says.

More importantly, Barr’s letter doesn’t address something else Mueller investigated: whether a series of exchanges between Trump’s campaign and Russians amounted to a crime. The sworn testimony of Trump’s aides reveal that, at least through June 2016, he continued to pursue a $300 million real estate deal in Moscow that required Vladimir Putin’s assistance. While hoping to land that deal, Trump’s son, Don Jr., took a meeting with some Russians offering dirt on Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end of the meeting, Don Jr. said his father would consider sanctions relief for Russia if he won.

Then, on August 2, 2016, in the same meeting where Manafort gave Kilimnik polling data, he discussed a “peace” deal in Ukraine that would also amount to sanctions relief for the Russians. Finally, after he was elected but before he was president, Trump undercut President Obama’s response to the Russian hacks, suggesting that he would give Russia sanctions relief.

The hack-and-leak is not the crime Trump may have committed. It is, instead, a quid pro quo deal by which Russia would help Trump win and Trump would relieve Russia of the sanctions imposed for engaging in human rights violations, annexing Crimea, and hacking the election to help Trump win.

In deciding that Trump didn’t obstruct justice after a paltry 48 hours of review, Barr “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.” He came to this conclusion—in spite of saying during his confirmation hearings that what Trump is known to have done amounts to obstruction—because Mueller found that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.”

That’s not the crime that, the evidence quite clearly shows, Trump may have committed. This is not the crime that Manafort appears to have lied about in hopes of getting a pardon.

In giving Trump the all-clear on obstruction charges, Barr appears not to have considered whether Trump obstructed the actual crime in question. He instead considered whether the president obstructed a different crime. This is the legal sleight of hand that has allowed Barr to proclaim that Trump will not be charged.

The Democratic-controlled House Judiciary Committee now has abundant reason to get all the underlying materials from the Mueller inquiry, because the attorney general just cleared the president of something he agreed constituted a crime just a few months ago.