What Congress Should Ask Bill Barr When He Testifies

There’s been a ton of focus in recent weeks on what William Barr and Robert Mueller have already said—in particular, on Barr’s four-page letter to Congress previewing the special counsel’s report, Barr’s press conference preceding the release of that report, and of course Mueller’s report itself.  Their words have been perused, parsed, and even panned by some.

But, soon, each will again have the chance to speak for himself.  Barr testifies before Congress on May 1 and 2.  And, with Barr having said publicly that he has “no objection to Bob Mueller personally testifying,” Mueller’s own appearance on the Hill likely won’t lag far behind.

We are recommending key questions that each should be asked about their work on the investigations of Trump-Russia links, their anticipations and recommendations for what comes next, and—perhaps most intriguingly—their interactions with, and expectations of, each other in the context of the Russia investigation. We begin here with Barr, and will follow up with questions for Mueller after Barr testifies and once a date for Mueller’s hearing is set.

Questions for Attorney General William Barr

I. Preparation for Release of the Redacted Mueller Report

1. Do you hereby testify that everything you said in your March 24, 2019 summary letter and everything you said in your press conference on the morning of the public release of the Mueller Report is true and accurate?

2. With whom exactly, outside of the Department of Justice, did you share a copy of the Mueller Report before releasing it to Congress? Did those copies of the report include the exact same redactions as the version you sent to Congress?

3. At the press conference on the morning of the public release of the Mueller Report, you said, “the White House fully cooperated with the Special Counsel’s investigation.” How can you make such a claim when the report itself documents such conduct as the President (1) trying to fire the Special Counsel and (2) refusing the Special Counsel’s request for an interview?

4. The Mueller Report’s description of obstruction raises many questions about what exactly took place and how the Special Counsel’s Office interpreted some individuals’ actions and intentions. As one example, it is not clear why the Special Counsel concluded that the President was not asking KT McFarland to lie, given that the President asked her to make a written record of something she did not believe to be true. Between the time you received the Special Counsel’s report and issued your summary two days later, did you have any questions about the report that you discussed with Director Mueller? How many hours would you estimate you spent discussing your questions with him? What questions were foremost on your mind?

II. Conspiracy and Coordination

5. Mr. Mueller provides two important caveats to his conclusions on collusion. On page 2, he notes that insufficiency of evidence is neither lack of evidence nor “no evidence,” and emphasizes that his standard for evaluating the activities that he investigated was whether there was enough evidence to prove every element of a crime beyond a reasonable doubt. On page 10, Mr. Mueller further notes that he was hindered in some instances from obtaining evidence because witnesses invoked the Fifth Amendment, deleted communications, provided false or misleading testimony, or were located abroad. As an example, in the executive summary the report states that several individuals affiliated with the Trump Campaign lied to the Special Counsel’s Office which “materially impaired the investigation of Russian election interference.” These caveats are critical context to his conclusions – can you explain why you did not include them in your summary or your prepared remarks?

6. You stated in your press conference on the morning of the public release of the Mueller Report that Mueller found “no underlying collusion with Russia.” However, Mueller specifically stated that he was not applying the term “collusion” to his findings, but rather a criminal conspiracy framework. The report states: “this Office evaluated potentially criminal conduct that involved the collective action of multiple individuals not under the rubric of ‘collusion,’ but through the lens of conspiracy law.” He also emphasizes that the investigation uncovered numerous instances of links between Russia and the Trump campaign, the substance of which he evaluated under several sets of federal laws. Can you clarify your use and definition of the term “collusion,” and moreover why you chose to use it when Mueller had made clear that his investigation had not?

7. Mueller states in his report that the investigation into election interference began in July 2016-  after a sequence of three events: (1) the June 2016 hack of the DNC server, for which the U.S. Intelligence Community determined Russia was responsible; (2) an initial release of some of these stolen emails by Wikileaks in early July 2016; and (3) reports to the FBI from a foreign government, just days later, that an individual claiming contacts with the Russian government had earlier approached Trump’s foreign policy advisor, George Papadopoulos, to assist the campaign by releasing information that would be damaging to Hillary Clinton. Do you believe that resolving whether Russia had targeted the Trump campaign using its hacked information was an appropriate predicate for a national security investigation (and, if not, why not)?

8. Can you explain the standard for probable cause for a FISA order, and how it differs from the standard and type of probable cause applicable in a criminal case? Can you explain the different purposes of a FISA order, in contrast to the purposes of a wiretap in a criminal case? Given these differences, do you believe there could be probable cause to obtain a FISA order for foreign intelligence purposes, but not to charge the target of that order with a criminal offense that can be proven beyond a reasonable doubt? (See fn. 183, where Mueller appears to address the CI on Page vs. potential criminal charges)

9. What work is the Department of Justice, including FBI, still doing to assess possible Russian influence on the Trump White House, and to mitigate any concerns about the threat of foreign influence?

III. Obstruction

10. Did Mueller ask you to reach and articulate publicly a conclusion on whether the President had obstructed justice, after Mueller felt he could or should not do so in light of Justice Department policy?  If not, did you ask his advice on whether you should (and, if you did, what did he say)?

11. In your prepared remarks for the press conference on the morning of the public release of the Mueller Report, you said, “the Deputy Attorney General and I disagreed with some of the Special Counsel’s legal theories.” What exactly were these disagreements? Did you personally discuss these disagreements with Mr. Mueller?

If he does not answer: Do you agree with Mr. Mueller’s theory that fairness principles preclude the Justice Department from making an accusation against the President? Do you agree with Mr. Mueller’s theory that the statutory defenses echoed in your 2018 memorandum are not legally sound? Do you agree with Mr. Mueller that Congress has an independent interest in investigating obstruction of justice as a part of its power to create federal courts and create the rules that are necessary and proper for how they operate?

12. What did you mean at your press conference on the morning of the public release of the Mueller Report when you said Mueller had told you that the current Justice Department guidance finding impermissible the indictment of a sitting President played essentially no role in his work and decision-making?  Do you read Mueller’s own report as saying that the guidance played essentially no role?

13. How can the American people trust that you approached your oversight role properly when you gave an interview to The Hill for a June 17, 2017 article and called the Special Counsel’s obstruction investigation “asinine” and said that Mueller risked “taking on the look of an entirely political operation to overthrow the president”?

Follow-up question: During your nomination hearings, you testified that you met with the President in June 2017 where he discussed offering you a job on his defense team. Was that meeting after The Hill quoted your views on the obstruction case? Could the views you expressed in The Hill story be part of the reason why the President was interested in hiring you?

14. In your March 24, 2019 summary letter, you said the following with respect to your and Deputy Attorney General Rod Rosenstein’s analysis: “Our determination was made without regard to, and is not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.” Was your determination made with regard to any views you may have about whether a president can be guilty of obstruction as reflected in your 19-page memo that you sent to the administration when you were in private practice? Was your determination made with regard to any views of the Constitution or statutory law on obstruction that differ from the views expressed in the Appendix of the Mueller Report?

15. Do you disagree with the following statement in the Mueller Report?: “Direct or indirect action by the President to end a criminal investigation into his own or his family members’ conduct to protect against personal embarrassment or legal liability would constitute a core example of corruptly motivated conduct.”

16. In your March 24, 2019 summary letter – which echoes your unsolicited memo to the Deputy Attorney general one year ago – you stated that the absence of evidence that the President committed an underlying crime bears on whether Mr. Trump had the requisite intent to obstruct justice. That is a highly controversial proposition, for which you would find little support in case law or legal treatises. Even if you were correct in that formulation, isn’t it clear from the public record and court proceedings in New York that the President directed hush money payments that involved criminal violations of campaign finance law, the discovery of which arose out of the Special Counsel’s investigation? Isn’t it true that the underlying crime itself may have been obstruction of justice or witness tampering, and the President engaged in a subsequent round of obstruction to interfere with the investigation of that crime? Isn’t it true that the President may have been worried that other members of the Campaign committed crimes, and the investigation would discover and result in convictions for those crimes? Would these constitute “underlying crimes” for purposes of obstruction, under your legal theory?

17. Do you disagree with the following statement in the Mueller Report: “Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong.”

(A likely answer by Barr: He does not disagree with the statement. If pressed, he may say obstruction “can” be motivated by such desires. If pressed further, he may say that, even though obstruction can be motivated by a desire to protect non-criminal personal interests, it is less likely or rarer to establish obstruction on that basis, and that should be taken into account in assessing obstruction. But that’s not what the Special Counsel said, and it’s not correct.)    

IV. Actions Upon and Following the Release of the Redacted Mueller Report

18. In your March 24, 2019 summary letter, you stated: “The Special Counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the Attorney General to determine whether the conduct described in the report constitutes a crime.” Why does it leave it up to you, and where in the report do you see indication of that? Why could you not have done as the Special Counsel did, which is to leave it up to Congress to decide and a future Justice Department when Trump is no longer in office? More fundamentally, Mr. Mueller thought he could not reach such a determination because of the Justice Department guidance that a sitting president cannot be indicted. Is it your position that Mueller could have reached such an assessment himself? If so, can the U.S. Attorney’s Office for SDNY also reach such an assessment?

19. The view of the Justice Department is that a sitting President cannot be indicted for a crime and that the only remedy is impeachment. What if a sitting President took actions that criminally interfered with the ability of the Congress to impeach him – in your view, would it make sense that he cannot be indicted when he has undermined the ability of Congress to impeach? Take an extreme example, such as if a President bribed or threatened the life of members of the House Judiciary Committee to prevent them from impeaching him. Or, to take a less extreme example, what if a President criminally obstructed the investigation of the FBI to determine whether he engaged in impeachable wrongdoing?

20. Rule 6(e) of the Federal Rules of Criminal Procedure allows you to ask a federal court to reveal grand-jury matters “preliminarily to or in connection with a judicial proceeding.” Do you agree that such judicial proceedings include impeachment proceedings? What is your view of situations that count as “preliminarily” to an impeachment proceeding?

21. Do you agree that Rule 6(e)(3)(D) of the Federal Rules of Criminal Procedure allows you to share grand jury material with at least some members of Congress without prior court authorization for matters involving national security and counterintelligence? If so, why have you not done so? The Senate Judiciary Committee has investigated Russian interference in the 2016 election and potential connections to the Trump campaign associates. Do you agree that you can share grand jury materials with members of the judiciary committees under Rule 6(e)(3)(D)?

22. Do you commit to permitting to reach their natural conclusions (in the eyes of those officials managing them directly) all of the investigations that the Mueller report references as continuing, in Appendix D of Volume II of his report, including those whose descriptions were redacted in the version of the report that you released?

After reading our list of questions and our prompt for readers to send additional questions, a former senior U.S government official sent us the following:

23. Why did you have a press conference to summarize a report that was going to be released to the public in 90 minutes?

24. Mueller recites a number of instances in which President Trump complained that his Attorney General did not protect him. Do you think that is an appropriate standard for an Attorney General? Did you have any conversations with President Trump about whether or not you would protect him?

25. Mueller’s report outlines extensive interference with our election by Russian intelligence. Do you believe that it was a “witch hunt” for the FBI to investigate these allegations?

26. Mueller’s report also outlines extensive contacts between persons associated with the Trump campaign and Russians, including individuals possibly associated with Russian intelligence. Do you believe it was a “witch hunt” for the FBI to investigate these allegations?

27. While Mueller did not conclude in so many words that the President obstructed justice, in a number of instances (see Charlie Savage’s NYT story) he laid out facts that could establish each of the elements of an obstruction offense.  With respect to each of these, can you say why you found that the facts did not warrant an obstruction charge?

28. Was your determination that there was no obstruction prompted to any extent by Mueller’s statement that the President could be prosecuted after he left office?

29. In your press conference you noted that Mueller had found evidence to support the idea that the President was motivated by concerns that his presidency was being undermined by the investigation. Why, in your press conference, did you not also note that Mueller had also found evidence that the President was motivated by a desire to protect himself, his campaign, and his family?

30. A combination of several readers (including Nancy Berg, Christine Brown, Mary Carr, Cassandra Bernstein, Jakob Hussfelt, Tina Randazzo):

Did you ever discuss with Mueller your view or preferences for a timeline for him to close the investigation? Is there any reason Mueller may have thought you wanted to end the investigation earlier than he otherwise would have?

Question from a reader (Tom Hayes):

31. What were the calculations to the timing of the release of the Mueller report?  Why didn’t you release the reports’ summaries composed by Mueller?  Why wasn’t Mueller present when you addressed the nation following release of the report?

Question from a reader (Ben ___) (lightly edited):

32. The report shows that the President attempted to obstruct not just in the portion of the investigation into himself and members of the campaign, but consequently also the overall investigation, which ended up revealing crimes by Russians. The President wasn’t cherry-picking to end or curtail only certain parts of the investigation, he wanted all investigative efforts to end. Regarding your opinion that there can’t be obstruction without an underlying crime, isn’t it clear from evidence presented in the report that underlying crimes were independently committed by Russians?

Question from a reader (Kirk Augustine):

33. I’d be interested to hear what AG Barr’s view is of Trump’s refusal to comply with any Congressional subpoena on the declared grounds that the majority party in the House is motivated by “partisan” or “extremely partisan” interests.  Can the rule of law, separation of powers, and checks and balances survive if that is accepted as a sufficient reason to reject Congressional oversight?

Question from a reader (Anonymous) (lightly edited):

34. You’ve given a narrow interpretation of obstruction, one with which precedent and many attorneys disagree. But leaving that dispute aside, even under your narrow interpretation of obstruction, and even under your very narrow set of criteria according to which the chief executive can obstruct, hasn’t Trump obstructed? For instance: when questioned by Senator Amy Klobuchar, you said to the effect of “even the Chief Executive commits obstruction if he destroys evidence.” But the Mueller report indicates Trump told McGahn to lie about Trump’s having told McGahn to fire Mueller, by creating a false record. Isn’t that interfering with the evidentiary chain essential to law enforcement? Isn’t that therefore obstruction, even according to your own very narrow definition of how the President can obstruct? Also, you have indicated that obstruction must succeed in order to be obstruction. But as Benjamin Wittes has pointed out in his analysis of the Mueller Report, in the case of Manafort, Trump’s obstruction seems to have succeeded. The dangled pardon produced a witness who claimed he would cooperate with the FBI, but did not–leaving questions unanswered to which the FBI had desired answers. There is no telling how damaging this was. So the President’s efforts succeeded in obstructing justice.

Question from a reader (Anonymous):

35. Trump’s son-in-law and advisor Jared Kushner recently stated that the Russian activity during the campaign was no more than “a few Facebook ads”.  Do you agree with this assessment in light of the detail in Vol. 1 of the Mueller report?

Question from a reader (David F. Schwartz):

36. In your opinion, is the president’s continued refusal to acknowledge Russian interference in the 2016 election an impediment to the nation protecting elections in the future?  Given the extensive evidence of Russian interference in our election, are you aware as Attorney General of any efforts by the President to protect our election systems for future elections? If so, please detail all such efforts.

 

Think we are missing some crucial questions? Send us a note (lte@justsecurity.org), and we can add your question to the list with attribution. 

About the Author(s)

Joshua Geltzer

Founding Executive Director of the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. Former Senior Director for Counterterrorism at the National Security Council, former Deputy Legal Advisor to the National Security Council, and former Counsel to the Assistant Attorney General for National Security at the Department of Justice. Member of the editorial board of Just Security. Follow him on Twitter (@jgeltzer).

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).

Asha Rangappa

Senior Lecturer at Yale’s Jackson Institute for Global Affairs. She served as an FBI counterintelligence agent from 2002 to 2005. Member of the editorial board of Just Security. Member of the editorial board of Just Security. Follow her on Twitter (@AshaRangappa_).