Monday, March 25, 2019

Abramson: 50 things wrong with Barr's farce

From his Twitter feed:

1/ Barr begins by conceding that, in accordance with DOJ regulations, the report he has received from Mueller only summarizes "prosecution or declination" decisions—meaning that it may well not include much of the raw evidence Mueller compiled, and be sparsely conclusory in form.
2/ Though Mueller may not have included raw evidence in his report—which mainly summarizes who he charged or didn't and why—Barr observes that "the report explains that his staff thoroughly investigated" the allegations, thus confusing the raw evidence and what Mueller told Barr.
3/ This means that we have not 2 but 3 data-points to work with:

(1) Mueller's case file.
(2) Mueller's summary of prosecution and declination decisions.
(3) Barr's summary of Mueller's summary.

Barr writes his letter in a way that quickly conflates #1 and #2—and it *matters*.
4/ So let's say Data-point #1 (Mueller's case file) establishes 80% proof of a crime being committed; Data-point #2 (Mueller's summary of prosecution and declination decisions) might simply say, "not enough to indict." Barr's letter (Data-point #3) can then *imply* "no evidence."
5/ As we've seen—and will see in this thread—that's exactly what Barr does: he carefully chooses his words in describing Mueller's "declination" decisions in a way that obscures how much evidence there may have been, leaving the impression—instead—there may have been none at all.
6/ Barr had a choice here: he could summarize the evidence or summarize the *summary* of the evidence. The decision he made was to summarize the summary, knowing that him doing so would feed into Team Trump's false narrative that criminal evidence exists in an all-or-none binary.
7/ But by *leading off* his "summary of the summary" by referencing the raw evidence—"the Special Counsel and his staff thoroughly investigated..."—it sounds like he's working from the raw evidence, not a summary of the evidence. This is a pretty basic legalistic bait-and-switch.
8/ The next thing Barr does is outrageously mischaracterize the scope of Mueller's investigation—wildly misquoting the public appointment letter that led to the 22-month Mueller probe. Why mischaracterize a public document like this (especially such a famous one)? Let's find out.
9/ Here's the DOJ document that authorized and set the scope for Mueller's investigation. Note, first, that it tasked Mueller with investigating "coordination" between Team Trump and the Russian government; it pointedly did *not* use the word "conspiracy."
10/ "Coordination" is far broader than "conspiracy," as a) it comes from counterintelligence—and thus includes far more conduct than the criminal system would recognize as problematic, and b) it has a broad lay meaning on par with "collusion"—not a narrow statute like Conspiracy.

11/ But note too that Mueller's appointment letter tasked him with fully investigating "any matters that arose or may arise directly from the investigation"—for instance if Mueller found insufficient evidence to charge Conspiracy but found evidence of Bribery, he could pursue it.
12/ Conspiracy requires an *agreement* of some kind—a "meeting of the minds"—with an illegal purpose, then an *act in furtherance* of the agreement to achieve an illegal end. The end needn't be achieved, but some agreement—here, with "the Russian government"—*would* be necessary.
13/ Here's the key point on this: As Mueller began his work, *no one in America was accusing Trump of engaging in a covert illegal agreement with a Russian government entity*. Not the IRA, not the GRU, not the FSB. *Nor had Trump done that*. Which is why he immediately denied it.
14/ Trump found the one type of collusion he *hadn't* engaged in—a covert, before-the-fact agreement (Conspiracy) with the IRA or GRU to (respectively) use psy-ops on or hack America—and denied it. Unfortunately, that was a small part of the "coordination" Mueller was looking at.
15/ What Trump *was* being accused of—and which he couldn't deny, because, as we already know from public evidence, *he definitely did it*—was allowing his foreign policy on Russian sanctions to be the product of Bribery (one of two enumerated impeachable offenses, with Treason).
16/ The Trump Tower Moscow-for-sanctions relief quid pro quo Trump was accused of was *never* chargeable as Conspiracy—it would be Bribery or maybe Aiding and Abetting (After the Fact) Russian interference by agreeing to unilaterally pay Putin trillions, and thus encouraging him.

17/ So with all that in mind, now look at how Barr mischaracterizes Mueller's investigation (having already set himself up to *only* be producing a "summary of a summary," not any underlying evidence Mueller might have developed on Bribery, Aiding and Abetting, or anything else). 18/ Wow—that's wrong on multiple counts, as you can see. Not only does it limit Mueller's evidence to Conspiracy—though we can't know yet if Mueller unnecessarily so limited himself or if Barr dishonestly limited his summary that way—but he makes another major inexplicable error. 19/ Barr summarizes the collusion evidence as being (a) *only* a matter of the narrow criminal statute of Conspiracy *and* (b) *only* Conspiracy with the Russian government "in its efforts to interfere in the election." Wow—that's totally not what Mueller's appointment was about. 20/ What Barr has done is *adopt wholesale* Trump's definition of "collusion": the narrowest possible definition, which involves *only* a single type of crime (Conspiracy) with *only* a single entity (the Russian government) and *only* on a single topic ("election interference"). 21/ The problem is that that definition *in no way fit* the collusion Trump was *actually* being accused of—which involved (a) Bribery, (b) by Russian agents, affiliates, or cutouts, (c) on the subject of trading U.S. sanctions policy for loans or deals with Trump and his family. 22/ So when Barr then boasts about how many resources Mueller devoted to his work, he does so amidst a massive confusion he himself created and hasn't resolved—did Mueller commit all those resources to an insanely narrow collusion probe? Or is Barr mischaracterizing the evidence? 23/ So here's where Barr goes off the rails: he says the only collusive crime Mueller looked at was whether Americans "joined the [two] Russian conspiracies" to influence the election—the IRA and GRU conspiracies—which would be a federal crime (Conspiracy). But that's 100% wrong. 24/ It's wrong because that's far narrower than Mueller's appointed task—so either Mueller self-limited himself because he knew as many as 20 other federal/state investigations were in a position to look at broader collusion *or* Mueller did his job and Barr is hiding it from us. 25/ What's bizarre is that when Barr says Mueller "did not find"—then says Mueller "did not establish"—the crime of Conspiracy, he *switches* to the language of Mueller's appointment ("coordinated") though "coordination" goes *far* beyond the issue of Conspiracy. Total confusion. 26/ What this looks like to me as a lawyer—combining this evidence with Barr's prior false framing—is that Barr wants to imply Mueller found no collusive criminality *of any kind* when it's entirely possible (even likely) that Mueller only looked at a *narrow* form of Conspiracy. 27/ It gets worse. You'll notice that MUELLER used the language "did not establish"—meaning *simply*, "did not have the evidence to prove a crime beyond a reasonable doubt," which could still mean 80% proof of criminality—but BARR switched to "did not find" (suggesting 0% proof). 28/ Barr is well aware—he certainly was when he wrote his wildly irresponsible advisory memos to Trump, which served as his audition for the job of Attorney General—that Team Trump has been equating "less-than-beyond-a-reasonable-doubt proof" with *no evidence*. So he helped out. 29/ There's nothing academic about this: the GOP *jumped* on *Barr's* language—not *Mueller's*—for the premise that Mueller found *no* evidence of *any* collusion, rather than—as Mueller said—something less than beyond-a-reasonable-doubt evidence of a *narrow* type of Conspiracy. 30/ Barr next confirms that he's only summarizing findings as to Conspiracy (the statute) with two entities—the IRA and GRU. Again—no one ever accused Trump of signing a secret agreement with either of these entities. Barr keeps sticking to his misleading "did not find" language. 31/ Because we know the language Mueller used is "did not establish [beyond a reasonable doubt]," Barr's "weasel-words" (as we colloquially call them in the law) reveal something *damaging* to Trump: there may be *some* evidence of something we thought there was *no* evidence of. 32/ The *reason* no Democrats accused Trump of signing a secret agreement with the IRA or GRU—and, we assumed, the reason Trump *only* specifically denied that sort of conduct—is, we thought, because there was *no* evidence of it. Mueller is allowing there *may* be some—or a lot. 33/ So halfway through Barr's letter, his political motives have been revealed through *multiple* misleading framings/characterizations—but moreover, these framings and mischaracterizations inadvertently reveal that things could be *worse* for Trump on collusion than we thought. 34/ Meanwhile, Barr's misleading framings/characterizations reveal that the type of collusion Trump was *actually accused of* either (a) was never looked at by Mueller, or (b) was looked at but *Barr has decided* they lie outside Mueller's purview, even though we know they don't. 35/ The Daily Beast reported, shortly after Barr released his letter, that Mueller wanted *Congress*—not DOJ—to decide what his evidence meant, so the point I've just made is even more problematic: did Barr make a *political* judgment on *collusion* that Mueller actively opposed? 36/ Meanwhile, we have a situation in which, just before Barr released his letter, Donald Trump and Donald Trump Jr. and Rudy Giuliani were *all* saying that America should see what I've called "Data-point #1"—the Mueller case file—in *full*. Now they're backtracking *hard*—why? 37/ Barr then switches to the Obstruction question, revealing that Mueller made no judgment on the issue of whether a crime—and impeachable offense—had occurred, but wanted Congress to decide, instead. He also reveals something else that I think many people may miss—but it's key. 38/ Barr reveals that most of Mueller's evidence on Obstruction was taken from the public sphere—which reveals that Mueller spent most of the 22 months his team of 40 people was working looking at collusion. It makes how Barr handled and discussed that issue even more suspicious. 39/ Given that Rod Rosenstein is a *witness* in the Obstruction case, and therefore can't speak to it—and given that Barr already issued a *judgment* on Obstruction pre-evidence (via his memos) and therefore has an unambiguous need to recuse himself—what he says next is amazing. 40/ What Barr reveals is 2 ineligible arbiters of Obstruction—he and Rosenstein—made the final call on Obstruction though Mueller seems to have believed the issue was properly for Congress (either constitutionally or because the evidence was public and they're the people's reps). 41/ What Barr says next—that you can't commit Obstruction if there's no underlying crime—is, well, *crazy*. You can't find a serious attorney anywhere in America who says that's the law, as it simply isn't and never has been and no one knows where Barr came up with this doctrine. 42/ With that dramatic suspense generated, I'll now say that there's *one* group of people who've argued, counter to anything in American law, that you can't commit Obstruction if there's "no underlying crime [that's going to be charged]"...Donald Trump's legal team. Yikes. 43/ So a guy (Rosenstein) who'd have to go on TV and testify against Trump in an impeachment trial in the Senate if he says there's Obstruction, and a guy (Barr) who auditioned for Trump's legal team—which has a crazy Obstruction doctrine Barr shares—making a call on Obstruction. 44/ Barr then falsely says grand jury material "cannot be made public," when in *fact* he means it *can* be made public if the AG requests that from a judge, but Barr is refusing to do so either across the board or in almost all cases. What's he afraid of? His letter suggests it. 45/ Barr's letter says *almost all* the Obstruction evidence is public, so the evidence Barr is trying to *hide* by not asking a judge to allow it to be revealed to Congress is almost entirely—all together now—*collusion evidence*. The same collusion he misleads on in his letter. 46/ But wait! you say. What evidence do we have that Barr's insanely narrow definition of Obstruction—which we've already shown is matched by an insanely narrow definition of collusion—means that what he wants to hide is a) collusion evidence that's b) more broadly defined? 47/ That's right: Barr is acknowledging, when his letter is taken in *full*, that the evidence he wants to keep from Congress is collusion evidence—which he's already mischaracterized—which is currently part of *ongoing federal criminal investigations [into collusion]* elsewhere. 48/ Many, me included, have taken from Barr's words that Mueller interpreted his brief on collusion narrowly and farmed out to other jurisdictions—the 20 pending Trump-related probes I mentioned—the collusion allegations Democrats were *actually* making. This seems to confirm it. 49/ Barr's "hide-the-ball" on collusion is therefore just what we'd expect, given his behavior on other fronts: an attempt to keep from Congress and the public any information on the *collusion allegations that were actually made against Trump*—not the *ones Trump was okay with*. 50/ All this explains why Trump's calls for Mueller's report to be made public—already fake, given that he knew his Congressional allies and Barr would fight full disclosure tooth and nail—have now been backtracked. And why yesterday *wasn't* the victory he pretended it was. /end

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.