Barr: 'We Were, Frankly, Surprised' That Mueller Would Not Decide the Obstruction Issue

By Susan Jones | May 1, 2019 | 11:25am EDT
Attorney General William Barr (Photo: Screen capture)

( - Attorney General William Barr told the Senate Judiciary Committee on Wednesday that he learned at a March 5 meeting that Special Counsel Robert Mueller was not going reach a decision on whether President Donald Trump obstructed justice.

"And we were, frankly, surprised that they were not going to reach a decision on obstruction. And we asked them a lot about the reasoning behind this and the basis for this," Barr said in his opening statement, which continued as follows:


Special Counsel Mueller stated three times to us in that meeting, in response to our questioning, that he emphatically was not saying that but for the OLC (Office of Legal Counsel) opinion, he would have found obstruction. [The Justice Department Office of Legal Counsel has generally ruled that a sitting president cannot be indicted.]

He said that in the future, the facts of a case against a president might be such that a special counsel would recommend abandoning the OLC opinion, but this is not such a case.

We did not understand exactly why the Special Counsel was not reaching a decision, and when we pressed him on it, he said that his team was still formulating the explanation.

Once we heard that the Special Counsel was not reaching a conclusion on obstruction, the deputy (Rod Rosenstein) and I discussed and agreed that the Department had to reach a decision. We had the responsibility to assess the evidence set forth in the report and make the judgement.

I say this because the Special Counsel was appointed to carry out the investigative and prosecutorial functions of the Department and to do it as part of the Department of Justice.

The powers he was using, including the power of using a grand jury and using compulsory process, exists for that purpose -- the function of the Department of Justice in this arena -- which is to determine whether or not there has been criminal conduct. It's a binary decision. Is there enough evidence to show a crime? And do we believe a crime has been committed?

We don't conduct criminal investigations just to collect information and put it out to the public. We do so to make a decision.

And here we thought there was an additional reason, which is, this was a very public investigation. And we had made clear that the results of the investigation were going to be made public, and the deputy and I felt that the evidence developed by the Special Counsel was not sufficient to establish that the president committed a crime and, therefore, it would be irresponsible and unfair for the Department to release a report without stating the Department's conclusions and thus leave it hanging as to whether the Department considered that there had been criminal conduct.

So the deputy attorney general and I conducted a careful review of the report with our staffs and legal advisers. And while we disagreed with some of the legal theories and we felt that many of the episodes discussed in the report would not constitute obstruction as a matter of law, we did not rest our decision on that.

We took each of the ten episodes and we assessed them against the analytical framework that had been set forth by the Special Counsel and we concluded that the evidence developed during the Special Counsel's investigation was not sufficient to establish that the president committed an obstruction of justice offense.

Barr said he released his four-page memo on March 24, setting out the Mueller report's bottom line, because "the body politic was in a high state of agitation," with all kinds of speculation floating around.

"I didn't feel that it was in the public interest to allow this to go on for several weeks without saying anything. And so I decided to simply state what the bottom line conclusions were, which is what the department normally does, make a binary determination. Is there a crime or isn't there a crime? We prepared the letter for that purpose."

Barr said Robert Mueller did not take issue with the accuracy of the memo.

"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. And that the press was reading too much into it. I asked him specifically what his concern was, and he said that his concern focused on his explanation as to why he did not reach a conclusion on obstruction.

"And he wanted more put out on that issue. He wanted -- he argued for putting out summaries of each volume, the executive summaries that had been written by his office, and if not that, then other material that focused on the issue of why he didn't reach the obstruction question. But he was very clear with me that he was not suggesting that we had misrepresented his report.

"I told Bob that I was not interested in putting out summaries and I wasn't going to put out the report piecemeal," Barr said.

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