U.S. Attorney General William Barr, in his letter to Congress about the Robert Mueller report, cites an incorrect standard for bringing a federal obstruction-of-justice charge. On so-called collusion, Barr claims Mueller "did not establish" grounds to support such a charge, even though the public already knows of at least three instances where members of the Trump campaign apparently acted in coordination with Russian officials.
Is Barr's four-page letter to be taken seriously? Did Barr write it in good faith? Our answer to both questions is no, and we are not alone in that assessment. A writer at Salon referred to Barr's analysis of the Mueller report as "fake." A writer at Truthout called Barr's letter "meaningless," part of a "disinformation campaign." A writer at The New Republic said the Trump campaign committed crimes, and Barr is "helping . . . cover it up." A writer at Vanity Fair said Barr essentially "pardoned" Trump. A writer at Slate referred to Barr's use of "weasel words" to help protect Trump.
The citizenry appears to distrust Barr's handiwork -- with good reason. Consider Barr's explanation of how he and deputy AG Rod Rosenstein concluded that Mueller's report did not provide sufficient evidence to bring obstruction charges:
Generally speaking, to obtain and sustain an obstruction conviction, the government would need to prove beyond a reasonable doubt that a person, acting with corrupt intent, engaged in obstructive conduct with a sufficient nexus to a pending or contemplated proceeding. In cataloguing the President's actions, many of which took place in public view, the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent, each of which, under the Department's principles of federal prosecution guiding charging decisions, would need to be proven beyond a reasonable doubt to establish an obstruction-of-justice offense.
Notice that Barr twice claims the government would have to prove obstruction "beyond a reasonable doubt" to obtain a conviction at trial. That, of course, is true, but he AG is jumping ahead of the game. The reasonable-doubt standard is for a jury or judge to decide, Barr's letter, however, is about the Mueller INVESTIGATION -- which had the central purpose of determining whether to bring charges or not.
The standard for such a determination is "probable cause," not reasonable doubt. Probable cause has been defined as the presence of "particular facts and circumstances [that are] sufficient to warrant a prudent person's belief that a suspect has committed an offense."
Jed Shugerman, of Slate, noted Barr's peculiar citation to the reasonable-doubt standard:
An indictment requires probable cause, but Barr, and presumably Rosenstein, held the evidence to a higher standard. It is wise for a prosecutor to bring charges not for the barest margin of evidence over the threshold, but to think about the prudence of a trial. Barr and Rosenstein are surely wise to take that trial standard into account in determining whether an indictment might be warranted. But if Barr held himself to that high evidentiary standard to justify his decision not to bring charges, surely it is also relevant to ask whether Mueller’s team also held itself to that same rigorous “beyond a reasonable doubt” standard both on questions of obstruction and conspiracy.
It matters if Mueller had sufficient evidence for probable cause on either of these questions but decided it was insufficient evidence for a prudent indictment with an eye toward a trial and a realistic conviction. Probable cause is relevant for Congress and for the public.
I would take it one step further than Shugerman did: Barr not only held the evidence to a higher standard, he held it to an unlawful standard. Probable cause is relevant for Congress and the public in the Trump-Russia matter, as it is relevant in all criminal matters.
Consider the most high-profile criminal case in Alabama over the past few years -- the federal fraud trial of Birmingham attorney and businessman Donald Watkins, who happens to be black. Charges were brought against Watkins based on probable cause; if prosecutors were forced to indict Watkins only on a reasonable-doubt standard, he almost certainly would not have been charged. In fact, hardly anyone would be charged with a crime under such a standard.
With the Watkins matter in mind, and given that Trump's inner circle consists mostly of white people, Barr appears to have created a double standard based on skin color -- a form of white privilege, if you will.
Consider these words from Slate's William Saletan about Barr's use of the reasonable-doubt standard:
The attorney general says prosecutors would have to prove “each” of these elements of the case “beyond a reasonable doubt.” Even if some of Trump’s acts are both obstructive and corrupt, Barr won’t bring charges unless the “nexus to a … proceeding” can also be proved by the highest legal standard. In a case like this one, that’s an almost impossible threshold for prosecution.
A sage legal observer once noted that a grand jury could find probable cause to "indict a ham sandwich." That illustrates the bar for bringing criminal charges, against most citizens (including Donald Watkins), is relatively low. But for the Trump crowd, Barr has established an "almost impossible threshold." Is that a back-hand slap at any notion of "equal protection under the law"?
First, the top-line item that Trump and his allies have taken as total exoneration: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”
This conclusion is a good one for the president’s defenders. But it doesn’t address any of the evidence of improper relations between Trump surrogates and Russia that we already know about or explain how Mueller viewed these connections within his framework for finding “no collusion.” What about the actions of informal adviser Roger Stone, who allegedly contacted WikiLeaks to seek information for the Trump campaign? The Mueller team’s indictment of Stone alleges, “After the July 22, 2016 release of stolen DNC emails by [WikiLeaks], a senior Trump Campaign official was directed to contact [Stone] about any additional releases and what other damaging information [WikiLeaks] had regarding the Clinton Campaign.” Who directed the senior official?
What about Paul Manafort and Konstantin Kilimnik? Mueller’s team had already concluded that Manafort lied to investigators about offering detailed polling information to Kilimnik, whom Mueller has identified as having “ties to a Russian intelligence service.” The Mueller team’s own court filings seem to contradict Barr’s letter. What did Mueller’s own summary ultimately determine about these contacts, which are very relevant to Congress’ counter-intelligence mandate? Such contacts do not have to be direct to count as conspiracy or even non-criminal coordination.
And that does not include perhaps the most blatant example of apparent coordination. Writes William Saletan:
We know, for example, that in June 2016, Donald Trump Jr. was told in an email that “the Crown prosecutor of Russia” had “offered to provide the Trump campaign with some official documents and information that would incriminate Hillary [Clinton] … and would be very useful to your father.” The email said the offer was “part of Russia and its government’s support for Mr. Trump.” Trump Jr. wrote back: “If it’s what you say I love it.” Apparently, by the standards asserted in the letter, this doesn’t count as even “tacit agreement … on election interference.”
Mueller could not find probable cause of conspiracy in the Trump Tower meeting that included Trump Jr., Jared Kushner, Paul Manafort, and Natalia Veselnitskaya, a Kremlin-connected lawyer? If Mueller is that inept, how did he ever become director of the FBI?
Regarding the Trump Tower meeting, consider this exchange at Vox during Sean Illing's Q and A with former federal prosecutor Renato Mariotti:
Mueller’s decision against collusion is surprising to many people who’ve spent the last two years watching all these stories emerge and seeing various people in Trump’s orbit be charged with crimes. What’s the bar for proving conspiracy or coordination?
I can speak to conspiracy, because I’ve tried a lot of these cases. There you have to prove that someone knowingly entered into an agreement to commit a crime, and that’s very hard to do, especially when there isn’t direct evidence that they did so.
In this case, we certainly know there was a conspiracy among Russian operatives to influence the 2016 election, but the question was always, did any Americans actively and knowingly participate in that conspiracy?
Well, this is what’s so confusing. We have evidence that the president’s son arranged a meeting with a Russian lawyer at Trump Tower to discuss damaging information about Hillary Clinton that the Russians stole. If that’s not collusion or conspiracy, what the hell is?
It’s a great question. In the emails we have from Donald Trump Jr. about that meeting, it appears that, first of all, he’s expressing his eagerness to receive help from the Russian government. But it’s not clear, however, that he met with someone, and formed an agreement with her, to make that happen.
In other words, he didn’t have an agreement to do anything concrete with her and did not take a substantial step towards joining that conspiracy or aiding their effort in some way. Based on the public record, that’s what we know. Maybe there’s more that we don’t know. But given what we do know, that doesn’t quite meet the threshold for establishing a conspiracy, even though it’s obviously deeply suspicious.
Mariotti acknowledges that Illing has raised a great question -- perhaps the best question we've seen raised so far regarding Barr's letter. In fact, the question is so good that Mariotti can't come up with much of an answer. Perhaps that's because Mariotti already had said this in the interview:
So Barr’s decision raises more questions than it answers. And given the weight of the decision he was making, that causes me to question his motivations.