Today, Explained - A Mueller walks into a Barr

Episode Date: May 3, 2019

This week in Mueller report aftermath: An incendiary letter leaks; the attorney general spars with senators and then cancels a date with the House. Slate’s Dahlia Lithwick reflects on what might be a constitutional crisis. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Dahlia Lithwick, host of the Amicus podcast from Slate. The notion of our harmonious politics felt like it was pierced on Tuesday when a letter Special Counsel Mueller wrote to Attorney General Bill Barr leaked. What did it say? A slightly irate Bob Mueller wrote on March 27th after the initial summary came out of the Mueller report. That was the one in which pretty perfunctorily Attorney General Barr said no collusion and no obstruction. And it seems that Mueller was a little bit upset at the way that had been characterized. And he pushed back a little bit and essentially said, what you have put out there has created, quote, 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 investigations.

He went on to say, I created summaries. Use our summaries and don't use your own. And we know that Mueller doesn't talk this way. And so I think it's fair to say he was legitimately quite frustrated with the rollout and with the initial capturing of the narrative. And so really, when Barr sat down to testify, he was already wrong footed by the leaking of something that essentially said Mueller thinks you kind of blew it on the rollout. Is it any accident this letter leaked Tuesday night between the story Mueller tried to tell in his report and the ways that was being shaped by Barr. And I think that there was a growing sense that Mueller's decision to let the report speak for itself was being co-opted by an attorney general who was pretty intent and determined to tell a very, very pro-Trump

story. What was the strategy that Attorney General Barr took on Wednesday in responding to the central question here? Did he sort of taint the public perception of this report? Yeah, he went for blaming the press. And I called Bob and I asked him if he was suggesting that the March 24th letter was inaccurate. And he said, no, but that the press reporting had been inaccurate. There's no evidence whatsoever in Mueller's March 27th note that the problem was that the press got it wrong. So he he went with that. And then he did a little throwing of Mueller under the bus. Well, I don't consider Bob at this stage a career prosecutor. He's had a career as a prosecutor.

Well, he was a very eminent prosecutor. He was the head of the FBI for 12 years. He's a career law enforcement professional. Going full on to condemning the letter that was sent by Mueller as snitty. Snitty, and I think it was probably written by one of his staff people. The other part was to, and this is the part I think that was legitimately alarming, was to define away all of the findings

that were most troubling in the Mueller report, including these 10 chronicled episodes of attempted obstruction that may not rise to criminal obstruction, but are still pretty distressing. And he explained them away in ways that were fairly shocking in the worldview that they put forth of what the president could get away with. So how did he explain away the 10 potential instances of obstruction of justice?

I think there are two slightly separate things that went on. And one of them actually even predates his first press conference. And it goes back to that memo, the unsolicited memo he wrote when he was arguably auditioning for this gig. And he said, there's no set of facts under which the president can obstruct justice and makes this argument there can never be obstruction under that framing of presidential authority. But that's a little bit different and distinct from what we saw playing out on Wednesday. And that is exactly the language that was so actually shocking on April 18th when Barr gave his press conference and started talking about, oh, poor, poor Mr. President. There is substantial evidence to show

that the president was frustrated and angered by his sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. And he said it several times on Wednesday. The whole thing was false accusations. If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he felt that this investigation was unfair and was hampering his ability to govern. That is not a corrupt

motive for replacing an independent counsel. And the conclusion he seemed to reach, and this was, I think, deeply troubling to people who are listening carefully, is that if the president subjectively makes the decision that he doesn't think the investigation is legitimate, then he can't obstruct. Then classic obstructive acts are not obstructive because the president thinks this whole investigation is not legitimate. That's Nixonian. If the president does it, it's not illegal. That's kind of terrifying.

So none of this really feels resolved at all by end of day Wednesday. What happens on Thursday when Barr is supposed to return to Congress to testify before the House committee? Well, he balks. He says that he doesn't like the way this thing has been set up. He just is a no-show, and we have a not hearing and at least threats that he's going to be found in contempt next week for failing to show. We will make one more good-faith attempt to get the access to the report that we need. If we don't get that, we will proceed to hold the attorney general in contempt,

and we'll go from there. I think what you're seeing is a straight line between some of the language last week when Donald Trump said, I'm just not going to succumb to any subpoenas. I'm going to instruct everybody not to comply with any oversight. And this is, in effect, I think, putting into practice what that's going to start to look like, that folks are just going to say this entire process is illegitimate and I don't have to show. It feels like a constitutional game of chicken a little bit. It also feels like it is slipping quickly into what could start to look like a constitutional crisis. And if this is a constitutional game of chicken, Representative Cohen is onto it

because he called William Barr a chicken and even brought out a toy chicken on Thursday. Chicken Barr should have shown up today and answered questions. Attorney General who was picked for his legal acumen and his abilities would not be fearful of any other attorneys questioning him for 30 minutes. It's a sad day in America. Not only that, but Nancy Pelosi said that Barr had committed a crime.

What is deadly serious about it is the Attorney General of the United States of America was not telling the truth to the Congress of the United States. That's a crime. We really struggle with the word like liar and lying. But was Bill Barr lying? Do we know that? You know, there were colloquies in April in which Barr was directly asked, does Mueller have a problem with your conclusions in both of those instances? He said no. Now, he parsed that a little bit on Wednesday when he was asked directly. He said, oh, it was the underlings who had a problem. I was talking

to Mueller. So I think there is some plausible claim that he can say that he didn't exactly lie. But when he was directly asked, do you know if Mueller has a problem with your summaries? He said no. And that seems to be wrong. So it's fairly clear now that Pelosi thinks that he was not truthful about the fact that Mueller had real reservations, such reservations that he saw fit to put them into print. And if he doesn't show up and tell the truth, then there's not a lot of alternatives in terms of tagging him for something. It's almost forcing the other side in both cases

to escalate. And that can't redound to the benefit of anybody. If the president and his attorney general have indeed besmirched these investigations, the power of subpoena, the congressional institutions behind both. Could Mueller control Z the whole thing by showing up and treating all of these inquiries as legit? I get the sense that that seems to be the consensus. Mueller is faced with this tough decision, which is I've tried to be this sphinx-like character, you know, walking around in sock feet and letting my words, my indictments, my reports speak for themselves, not getting swept up into this reality

show. And he maybe put too much trust in the institution of the Justice Department, in the person of the Attorney General. If he feels that he put too much trust in Barr and Barr betrayed him, then there really isn't an alternative. I don't think that leaks from his staffers or leaked letters get him where he needs to go. And there is a question about whether the Justice Department is going to allow him to testify. There was some reporting from the Daily Beast suggesting that the Justice Department is going to slow walk this testimony. He's still in the middle of some of the other probes that still exist, and that's a question. So having been for more than two years the guy who just didn't have a name and a face and a voice, is he willing to step into the spotlight knowing that every single time anyone does that, they pull back a bloody stump?

Donald Trump will have a nickname for him and we'll tweet at him. And that's, I think, the question he's probably trying to work through. It must feel a little bit like lose-lose, but that March 27th letter was as strongly worded as I could imagine him crafting a letter, and to have it both ignored and then belittled on Wednesday must make at least part of him want to be very, very clear about why he did what he did. Just a quick recap. Mueller turned in his report. Barr wrote a memo saying what it said. Mueller didn't like the memo, but when asked, Barr didn't not lie.

Then we saw the redacted Mueller report. Then we saw two Mueller's letter of dissatisfaction. Now Barr is dancing around all of it. So is Barr going to be held accountable? Do consequences and credibility even exist anymore? And if not, what's a country to do? We'll wrestle with those questions after a quick break. If you've ever watched 800 episodes of anything, the producers of the new podcast Running From Cops

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More episodes than anyone really needs to see. But tell you what, episode one and two of Running From Cops, the new podcast, they're both available right now in podcast apps everywhere. Dahlia, after the redacted version of the Mueller report came out, there was some talk about impeaching President Trump, though it never seemed terribly realistic with Republicans in control of the Senate. Has that focus now all been shifted to the attorney general? I don't know. I think that certainly there is talk of impeachment for Barr.

There is certainly talk of either consequences for perjury, consequences for contempt. And at least as I am seeing the polling data, by about a two to one margin, people agree that what Mueller found in Donald Trump's conduct was horrifying and upsetting. But despite those margins, it looks like also by about a two to one margin, Americans have no appetite for impeachment. So you have such a huge disjunction between, you know, the horror that people are feeling and their willingness to take this strong medicine that is impeachment. And that's really the interesting problem is, OK, if we don't want to impeach people, what short of that is the remedy? And I think what we're learning again, you know, the more paralyzed they are by the president just saying like, no, you can't touch me. And so I don't know exactly how you game that out. I think we're in almost a foot race between public horror, which

is still there, and the president and the folks around him and their ability to say, yeah, but we just choose not to be checked. You've got people like Elizabeth Warren, Kamala Harris, Kristen Gillibrand, Cory Booker, all saying that Barr should step down. Was there a mistake made at some point in thinking that this presidential nominee to be attorney general, who had already said that he didn't really believe that the president could obstruct justice in this particular arena, would be anything but someone who would just go out there and defend the president and protect the president? I think there was some reason to feel that Barr would protect the institution.

But as you say, you know, his audition note was pretty clear that he was trying out for Trump. And I think some of the things that we're continuing to see that really are alarming, throwing around the word collusion, which not only has no legal meaning, but Mueller himself said in the Mueller report, like, please stop using this word. It has no legal meaning. And here's Barr, you know, repeating the president's framing. And I think that what we're seeing, and this is what is disheartening, is that Donald Trump always wanted an attorney general who was his lawyer. And that was his principal complaint about Jeff Sessions. You know, he said, why can't I get my Bobby Kennedy? Why can't I get my Eric Holder, the person who's just going to do whatever he can to fall on the grenade for me? And that is the part that I think is shocking, is that coming from an institutional actor and somebody who knows how the Justice Department works and what the independence of that institution means, for him to almost completely fall into these cartoonish tropes about collusion and spying and, you know,

the poor president is being beset by the press. That really is a surprise. So what can Democrats do? Congressional Republicans aren't going to cooperate. The president isn't going to cooperate. What can Democrats do in the meantime to protect these institutions, the DOJ, the Constitution. I think that this is this larger question of asymmetry. What do you do when, you know, you only control one house and when there isn't an appetite for impeachment? So what is the thing that is not impeachment that is holding this attorney general and this president to account?

And I think one thing we saw happening on Wednesday that is useful is really good cross-examination from Democrats in the Senate. Did anyone in your executive office review the evidence supporting the report? No. No. Really pressing bar on the shoddy workmanship here as the attorney general of the united states you run the united states department of justice if in any u.s attorney's office around the country the head of that office when being asked to make a critical decision about in this case the person who holds the highest office in the land, and whether or not that person committed a crime, would you accept them recommending a charging decision to you

if they had not reviewed the evidence? Well, that's a question for Bob Mueller. He's the U.S. attorney. He's the one who presents the report. But it was you who made the charging decision, sir. You made the decision not to charge the president. In a Pross memo and in a declination memo. You said it was your baby. What did you mean by that? It was my baby to let to decide whether or not to disclose it to the public. But anything that doesn't have the actual force of law turns into an opportunity to make a speech. You know, Kamala Harris, her questioning can go viral. But what that means in terms of structural systemic power, not a lot.

So are we reaching a breaking point here? Well, it's funny. I think there are two schools of thought. David Frum, Neil Kadhial, who is the former acting solicitor general, they seem to think that we're reaching a breaking point and that what's breaking is Trump. I think the other more cynical version is that the breaking point is that democracy is breaking. Trump's behaviors have changed not at all. The support for him has changed not at all. What's breaking is any capacity to check it. Don't forget for a year and a half, the rallying cry for Democrats was, if Mueller is fired, we take to the streets. If Mueller is fired, we take to the streets. That was the line in the sand. And now there's no chance of Mueller being fired. But

Democrats didn't quite construct the backup plan for if Mueller is completely distorted and devalued, we do X. And so there's a funny way in which I think the analysis assumed that that would be the worst catastrophe if Mueller was fired and didn't think through what would happen if Mueller was allowed to do his job and then what he did was not taken seriously. So the mistake people made here was having any faith in the government in the first place. You know, it's so interesting. I think, what do you do with people? And there are so many of them, right? This is John Kelly. This is Mattis. This is Tillerson. People who thought, I'm going to be a patriot. I'm going to be the moderating, leveling presence because the alternative to me is a nut. And, you know, Mattis and Kelly and Tillerson and even Kirstjen Nielsen at some point

have so corroded their own reputations and their own kind of moral worldview that they slink off, sometimes with a defiant secret memo to the file saying, sorry, I hated this. And I think one of the most spectacular things I've read in the last few weeks is Jim Comey writing in the New York Times this kind of crazy op-ed on Wednesday where he, like him or hate him, writes this thing about, you know, how Donald Trump will eat your soul. And that people come and they make bargains with themselves and they stay on without realizing what happens to them.

And so I don't know. I mean, I think one version of the facts is like, oh, no, Barr was always, you know, going back to Iran-Contra was always going to be an operative and a hack. I don't know if that's the answer or if people with good intentions who do believe that they're being patriots and do believe that their hand on the tiller is better than no hand on the tiller, find themselves hopelessly compromised. It's clear that no lesser a person than James Comey is wrestling with how can you be a party to this and not be compromised and coming away with the answer at the end of the day you can't. Dahlia Lithwick writes about law and the Supreme Court for Slate. I'm Sean Ramos-Verm. This is Today Explained from Vox. Thank you.