During his appearance before the Senate Judiciary Committee this week, William Barr described the report submitted by Robert Mueller, the special counsel, as “my baby.” The attorney general explained that Mueller amounted to the equivalent of a federal prosecutor serving in the Justice Department. Thus, he added: “It was my decision how and when to make [the report] public. Not Bob Mueller’s.”
All of that is correct. Yet the attorney general also has ample discretion, and in his handling of the report, Barr missed an opportunity to serve the public interest. He did so by losing sight of the first purpose of a special counsel, something Mueller sought to remind him in the letter he sent to Barr three days after the attorney general issued his misleading four-page memo in which he took it upon himself to summarize the main conclusions.
Recall why Mueller received the appointment, and why the choice won applause — from Democrats and Republicans. The country needed an independent investigation and assessment of the Russian intervention in the 2016 presidential race and what role, if any, the Donald Trump campaign played in the effort. Mueller seemed the ideal choice, highly respected, especially for his tenure as FBI director.
The objective wasn’t just to determine whether there were violations of the law. The larger aim was to produce a fact-filled report that would win public confidence, Americans equipped with a credible presentation of what happened. Mueller and his team performed the job well, as the 448-page report reveals, even as it leaves questions unanswered.
Once the report landed on his desk, the attorney general had a choice. He could see the report as “my baby” or respect the independence of the special counsel by stepping back and allowing the release to go forward as Mueller determined. Barr chose the former. In doing so, he went beyond telling the country that the special counsel failed to establish a criminal conspiracy or coordination. When the special counsel declined to make a decisive call on obstruction of justice, the attorney general supplied his own judgment, declaring: no obstruction.
No surprise the president seized the moment to exclaim: “total exoneration.” Or that Mueller quickly wrote to Barr arguing that the attorney general’s memo “did not fully capture the context, nature, and substance of this office’s work and conclusions.” Mueller expressed his concern, “There is now public confusion about critical aspects of the results of our investigation. This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigation.”
Mueller prepared introductions and executive summaries with suggested redactions, thinking they could be released promptly, the public gaining a deeper understanding from the start about what the investigation found. In his letter, he urged Barr to release the introductions and summaries. The attorney general balked, preferring to focus on the task of preparing the full report for release later. That left the president and allies free to spin their version of events, the public unaided by details in the report, including about the president’s efforts to thwart the investigation and the many instances of links between Russia and the Trump campaign.
For his part, Barr didn’t just mislead about the special counsel’s obstruction decision, in particular, skipping how much it had to do with past Justice Department practice. During his press conference tied to the report’s release, he stooped to echoing White House talking points. It didn’t have to be this way. The attorney general had the option of putting first the independence of the special counsel, releasing up front the introductions and summaries, letting Robert Mueller speak for himself.