A Lawyer's Reading of the Barr Letter

Amid all the sturm and drang (on all sides and in all directions) over the Barr Letter on the Mueller Report, I came across this WaPo op-ed by Henry Olsen, currently a  senior fellow at the Ethics and Public Policy Center. Granted, that is a conservative faith-based outfit, and Olsen has also worked for the American Enterprise Institute and the National Review. So it’s interesting that the point of his piece is that conservatives should not be so quick to celebrate: Hold off on your victory laps, conservatives.

Pundits are treating Attorney General William P. Barr’s letter summarizing special counsel Robert S. Mueller III’s report as the final official word on the matter. It is, in fact, far from it. The letter contains clear clues that Barr will release much more of the report’s contents soon — and that the president may not like everything he’ll read.

Lawyers are trained to write very precisely, and as a former lawyer I read Barr’s letter with that in mind. It appears there are at least three items we should keep in mind as we digest its contents. [emphasis added]

First:

Barr is “quite clear” that he is constrained by Federal Rule of Criminal Procedure 6(e), which makes it a crime to disclose grand jury information or material that could impact another, ongoing, investigation. Now, that could be his excuse, of course, but:

Subject to those caveats, however, the attorney general signals that he will release much, if not all, of the remainder of the report. The key sentence thus reads: “[My] goal and intent is to release as much of the Special Counsel’s report as I can consistent with applicable law, regulations, and Departmental policies.” That means there could be a lot of information to digest regarding the president’s and his campaign’s activities.

That includes Mueller’s evidence for obstruction of justice, since none of that is (probably) derived from grand jury testimony (Mueller could not get Manafort to talk) and Barr just made sure there is no ongoing case. And while that also gives rise to skepticism about Barr’s motives, it undercuts the argument that he can’t release any obstruction evidence. Which is Olsen’s second point:

That both the special counsel has chosen not to pursue any further indictments, and that the attorney general has decided the evidence presented does not “establish” that the president committed obstruction, work in favor of public disclosure.

Third, Olsen thinks Trump hasn't seen the report yet:

Based on the careful invocation of “confidential . . . to the Attorney General,” we should presume that he has not. Which seems to mean that the president’s blanket statement that Barr should release the entire report is based on neither he nor his lawyers having the slightest idea what it contains. Oops.

Of course, even if Trump has seen the report, he doesn’t know how to read lawyer-talk (or much else), and what he does read he filters through his preconceptions, so he may well have missed any damage. It certainly wouldn’t be the first time.

Again, this is a conservative commentator (I don’t know where he stands on Trump, though) writing to tell conservatives not get all giddy just because it looks like Barr let Trump off the hook. Odds are that the Mueller report does contain information that, while it does not rise to the criminal standard of “beyond a reasonable doubt,” does pass the smell test as far as public opinion goes. Remember, Mueller does know what he’s doing (or so we have to hope). And ultimately, Trump’s fate has always been a matter for public opinion, not the law, to decide (at least until he’s out of office).

And finally, even if Barr does try to sit on the report, Congress will pry it loose. Speaker Pelosi will see to it.

In the immortal words of Douglas Adams, “DON’T PANIC.” It ain’t over, not by a long shot.