What Barr's ongoing smear campaign against Robert Mueller is really about

Faced with the facts and the truth, Barr has done what many good defense attorneys do — attack the investigation and the investigator. But he's not a defense attorney.
Barr's criticisms of Mueller have little to do with justice or law.Chelsea Stahl / NBC News; Getty Images
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By Mimi Rocah, former assistant U.S. attorney and NBC/MSNBC legal analyst

President Donald Trump went to France this week, ostensibly to honor the fallen heroes of Normandy Beach. But he took some time out of those solemn memorials to attack former special counsel Robert Mueller (a veteran) as a “fool.” This shameful smear is part of an ongoing and concerted effort by Trump and his allies, particularly Attorney General William Barr, to undermine Mueller following the special counsel's short but quietly devastating news conference at the end of May.

Repeatedly, Barr has misrepresented the conclusions of the Mueller report, first in his March 24th four-page summary, as well as in his congressional testimony on April 24th and in his press conference just before the report was released on April 18. Over and over again, Barr seemed to bank on the fact that few people would actually read the full Mueller report and so Trump's and Barr’s false narrative of “no collusion, no obstruction” would be accepted in the media and by the public.

This shameful smear is part of an ongoing and concerted effort by Trump and his allies, particularly Attorney General William Barr, to undermine Mueller.

But that all changed when the report was released, the news about the complaints by Mueller about Barr’s summary was revealed and when Mueller himself spoke publicly for the first time on May 29. Without any hyperbole, in his own way, Mueller made clear three important facts: He determined only that “there was insufficient evidence to charge a broader conspiracy” between the Trump campaign and Russians who attacked us — nothing about “collusion”; he stated that he was not in any way exonerating or clearing Trump of obstruction of justice; he said that when the subject of an investigation obstructs that investigation or lies to investigators, that conduct must be addressed.

Faced with the facts and the truth, Barr has done what many good defense attorneys do — attack the investigation and the investigator. But he's not a defense attorney. In an interview with CBS News that aired the day after Mueller’s statement, Barr not only repeatedly and inappropriately insinuated that there was misconduct in the initiation of the Russia investigation, but he also criticized Mueller personally for what he portrayed as Mueller shirking his duties. According to Barr, Mueller should have stated explicitly whether he thought that Trump committed the crime of obstruction of because “[t]hat is what the Department of Justice does.” Barr went on to say that Mueller’s implication — that Trump did in fact obstruct justice — “did not reflect the views of the Department.”

So, the attacks on Mueller are twofold: Mueller didn’t do his job and even if he did, he did it badly. Why would Barr and Trump’s allies take this tack? Because in order to support Trump’s false “no collusion, no obstruction” exoneration narrative, Barr needs to justify why he swooped in and decreed that Trump didn’t commit the crime of obstruction of justice.

Mueller’s silence means Barr should have stayed silent too. But Barr and Trump’s allies need the media, the public and lawmakers to accept the attorney general's conclusions about the Mueller report. And the only way to do that is to smear Mueller and the process he followed.

Could Mueller legally have announced his conclusion? Probably. Even Mueller doesn’t seem to say it was prohibited (just that indicting a president would be). In the short term, would that have been more satisfying to those of us who see Trump’s conduct as clearly constituting criminal obstruction? Absolutely. But that doesn’t mean it would have been the right, fair or even smart thing to do in this setting.

Mueller’s approach has plenty of precedent. Specifically, his decision follows in the footsteps of the most ethical of prosecutors. What people may not recognize (but surely Barr does) is that the decision to bring charges even in the most ordinary of criminal cases is not based solely on the amount of evidence in a prosecutor’s case file. The question isn’t only, Can I charge someone with a crime? It must also take into account all of the facts and context of the case. Often the right thing for a federal prosecutor to do is not the most aggressive or most extreme she can get away with.

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In short, in an impossible situation, Mueller did pretty much everything he could to retain his reputation as a neutral fact-finder so as to preserve the integrity of the facts he uncovered. Because, ultimately, those facts — not his opinion about them — are what matters.

If Barr really thought that it was Mueller’s obligation to announce a conclusion about whether he thought Trump had committed a prosecutable crime, he could have directed Mueller (who worked for him) to render one. But Barr didn’t do that. And what about the other investigations into Trump? Shouldn’t any other United States attorney’s office with evidence of Trump’s participation in a crime announce their conclusions? The Southern District of New York has already implicated Trump in a campaign finance fraud scheme. This is surely not the outcome Barr intends, but it is the logical outgrowth of his critique of Mueller.

In this light, the question we all should be asking is not why Mueller didn’t weigh in on obstruction, but why Barr did — especially in light of previous and contradictory statements at his confirmation hearing. We know why Mueller made his choice. What precedents, regulations or principles does Barr rely upon? He has cited none because he can’t.

Barr also claims that Mueller’s analysis of obstruction of justice is wrong — at least partly. Even Barr in his CBS interview can’t say that Mueller is completely wrong. So he attempts a sleight of hand, saying “many of the instances would not amount to obstruction.” Note that he did not say all of the instances. And so, after stating during his congressional testimony that he had "accepted the special counsel's legal framework," Barr now claims he “didn't agree” with Mueller's “legal analysis” and that it “did not reflect the views of the Department.”

If Mueller had indeed made a mistake in his legal analysis, it would be within Barr’s power to correct that. But nothing about what Barr has said suggests any error by Mueller. In his April 18 press conference, Barr claimed that because Trump was “frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” these were “non-corrupt motives” that weighed “heavily against any allegation that the President had a corrupt intent to obstruct the investigation.” That logic is laughable. Most people charged with obstruction of justice (or any crime) are frustrated and angry. That doesn’t negate the seemingly illegitimate and corrupt motives Trump had when attempting to impede the Mueller investigation and other federal investigations. There is just no question that the “angry and frustrated” defense would not be recognized in federal court by a judge or a jury.

One of the other main rationales put forth by Barr — this time in his letter March 24 to Congress, was that there can’t be obstruction if no underlying crime is found. But that is clearly not in line with the law or history and practice of the Department of Justice. There are dozens of examples of cases brought by the DOJ under different administrations of people prosecuted for obstruction and perjury where no underlying crime was proven. Plus, if this was true, only the least successful obstructors would ever be prosecuted.

The Mueller report’s lack of a grand finale is vexing. But, like it or not, Mueller was clearly guided by important principles of prosecutorial fairness and he preserved as best he could the objectivity of his fact-finding. Barr, in his capacity as the nation’s top lawyer, is the one who has strayed from the ideals of the DOJ and everything it should stand for. His criticisms of Mueller have little to do with justice or law and everything to do with legitimizing the “no collusion, no obstruction” false narrative. It is now up to Congress to finish what Mueller began: revealing to the American public the president’s crimes and cover-ups.

Mimi Rocah

Mimi Rocah, currently a Distinguished Criminal Justice Fellow at Pace University Law School, served as an assistant U.S. attorney for the Southern District of New York from 2001 to 2017. Rocah is an NBC and MSNBC legal analyst.