May 6, 2019
Some further thoughts on how Mueller should respond to Barr’s criticism that he should have reached a determination about obstruction of justice.
I just published The fact that Barr has given Mueller permission to testify isn’t even the worst of it for Trump. link.medium.com/zjtlstQSsW
Some further thoughts on how Mueller could respond to Barr’s statement that if Mueller didn’t plan on making a prosecutorial decision about the obstruction issue, he shouldn’t have carried out the investigation in the first place. 1/24
Ir has occurred to me that something should be added to the letter that Mueller could publish and send to Barr. 2/24
Barr and Trump are such unprincipled and mendacious swine that it is conceivable that they would respond to such a letter by arguing that what’s done is done, and that it is too late for Mueller to “rewrite” his report. 3/24
Trump might use a “time’s out” argument as grounds to ignore the request of a waiver of privilege. 4/24
His argument might be that he declined to waive the privilege, not on the grounds that he is afraid of what Mueller’s determination might be, 5/24
but rather on the grounds that he regards the whole “Russia thing” to be over, and sees no reason to “reopen” the matter. 6/24
Mueller should forestall this move by giving Trump and Barr an ultimatum in the form of the following choice: either waive the privilege, or have Barr issue a public statement retracting the statement that he made to Congress. 7/24
“So my question is or was why were those investigated if at the end of the day you weren’t going to reach a decision on them?” 8/24
The letter to Barr could say: Due to your remarks before the Senate Judiciary Committee on May 1, you must do more to correct the record than simply refer to the fact that the entire report has been published, 9/24
because your statement before the Committee failed to correctly represent why this Office decided against providing a determination about whether the president obstructed justice. 10/24
Your statement misrepresented that decision because it failed to note that it was made entirely and only out of consideration for the president. 11/24
In making our reporting decision, we were concerned to treat the president fairly, as we explained in the Introduction to Volume II of the Report in the following paragraph: 12/24
In short, this Office decided that while an investigation of a sitting president is precluded from determining that he has committed a federal offense for the above reasons, it can reach a determination that he has *not been exonerated* by the investigation. 13/24
As I’m sure you can appreciate, the latter determination simply means that the investigation did not find sufficient evidence to establish that the President has not obstructed justice. 14/24
We reported our investigation’s findings about whether the President obstructed justice in this way out of concern to protect his interests. 15/24
We have been repaid by a statement during your Congressional testimony that has contributed to even more public confusion about critical aspects of the results of our investigation. 16/24
This threatens to undermine the public’s confidence in the outcome of the investigation. 17/24
We continue to believe that our original reporting decision was the right one, but unfortunately your public comments compel this Office to request either that the president waive the protection we extended to him in our Report, 18/24
or for you to issue a public statement clarifying in full this Office’s position on this matter. 19/24
That statement should include a retraction of your statement before the Senate Judiciary Committee that a special prosecutor should not undertake an investigation into possible obstruction of justice by a president 20/24
unless he or she resolves at the outset to reach a normal prosecutorial decision, even though reaching such a determination would be prejudicial to the President’s own interest should the determination be that a president *has* obstructed justice. 21/24
If this Office is not given a satisfactory response in either of these two ways, I will be compelled to clarify the matter for the public in the only way that will then be available to me: 22/24
to reach, as you requested, a determination about whether the President obstructed justice, and to release that determination to the public. 23/24
Sincerely yours,
Robert S. Mueller III, Special Counsel 24/24
