House Should Prepare Criminal Referral of A.G. Barr for Lying to Congress

With Special Counsel Robert Mueller’s upcoming public testimony, not only is the President’s job and potential criminal liability on the line. Mueller’s testimony about Attorney General William Barr’s handling of the Special Counsel report could also place the Attorney General in further professional and legal jeopardy.

Based on the available public record about the Russia investigation, it’s clear that the Attorney General has repeatedly deceived Congress in a manner that appears to have crossed the line established by federal criminal law. It’s a federal offence if anyone intentionally “falsifies, conceals, or covers up by any trick, scheme, or device a material fact” or makes a “materially false” statement before Congress. The cautious Speaker of the House, Rep. Nancy Pelosi, accused Barr of committing a crime when questions first arose two months ago about the truthfulness of his testimony concerning the Mueller report. Even more evidence of Barr’s misconduct has emerged since then.

After Mueller testifies, the House should consider transmitting Barr’s multiple testimonies to the Justice Department, and since Barr cannot investigate himself, call for a special counsel to do so.

A criminal investigation of Barr would be  unusual but not unprecedented. The House of Representatives has twice held an Attorney General in criminal contempt and referred the matter to the U.S. Attorney for the District of Columbia to pursue (a resolution against Eric Holder in 2012 for his refusal to provide information subpoenaed by Congress concerning the Fast and Furious gun trafficking program; and the recent resolution against Bill Barr and Wilbur Ross for their refusal to provide information subpoenaed by Congress about efforts to add a citizenship question to the 2020 census). Members of Congress also referred Jeff Sessions for potentially lying to Congress about contacts with Russians, and the FBI approved that investigation of the Attorney General.

Though Congress should wait for Mueller’s testimony to see if it reveals further incriminating or exculpatory evidence against Barr, it is sobering to consider the current record: right now, there is a strong and sufficient basis for Congress to call for a criminal investigation of our Attorney General for deception.

After Mueller testifies, the House should consider transmitting Barr’s multiple testimonies to the Justice Department, and since Barr cannot investigate himself, call for a special counsel to do so.

First, at a hearing in April, Rep. Charlie Crist asked Barr if he knew what was meant by news reports that “members of the Special Counsel’s team” felt that Barr’s summary of Mueller’s report was not adequate. Barr replied, “No, I don’t.”  Casting doubt on his veracity, we learned days later that Mueller had sent the attorney general a letter making explicit the special counsel’s concerns about Barr’s four-page summary.

Mr. Barr’s defenders claim that his answer was literally true since Crist did not specifically ask if the attorney general knew whether Mueller himself had these concerns. That defense is unavailing. As the country’s top legal ethics expert Stephen Gillers wrote, “the law would call Barr’s answer a lie.” That’s because, as Gillers explains, a literally true answer can also be false and misleading.

Second, at a hearing the following month, Barr told Sen. Patrick Leahy that he really didn’t know what Mueller staff’s concerns were, saying: “I talked directly to Bob Mueller, not members of his team.” But then Barr contradicted himself, stating that Mueller’s complaint letter “was probably written by one of his staff people.” Barr repeated that the letter was “staff-driven” in a subsequent CBS interview.

Barr can’t have it both ways. Either he had no knowledge of the Mueller staff’s concerns or he believed that Mueller’s letter reflected staff concerns. What’s extra damning here is that Mueller’s letter said, “We communicated that concern to the Department.” Get that? “We.” Presumably meaning Mueller and his team.

Third, in the same Senate hearing, Sen. Kamala Harris posed a precisely worded question: “Has the president or anyone at the White House ever asked or suggested that you open an investigation of anyone?” Barr tried to avoid answering but finally said: “I don’t know.” If he did know, he could be in serious legal trouble.

In answering Sen. Harris, was Barr “conceal[ing], or cover[ing] up by any trick, scheme, or device a material fact”? There’s evidence that President Trump wanted Barr to investigate the Biden-Ukrainian allegations cooked up by former Mayor Rudy Giuliani. Did Trump or his White House staff ask Barr to look into that matter? If so, Barr may have lied.  And what about Barr’s “investigation of the investigators,” that is, of U.S. officials who probed Russia’s 2016 election interference? Less than two weeks after Barr’s exchange with Sen. Harris, news broke that “Attorney General William P. Barr has assigned the top federal prosecutor in Connecticut to examine the origins of the Russia investigation … a move that President Trump has long called for.” Did the president (or his White House staff) ask Barr to do this? If so, then Barr may have violated the criminal statute.

Fourth, another concern involves the all-important question of how Barr concluded that President Trump did not obstruct justice, especially since over 1,000 former federal prosecutors think Trump did. In written testimony, Barr told Congress that he “accepted the Special Counsel’s legal framework for purposes of our analysis and evaluated the evidence as presented by the Special Counsel in reaching our conclusion.” It was initially reassuring that Barr did not apply his own (discredited and outlandish) legal theories on obstruction, and but used Mueller’s standard instead.

Now, though, there’s reason to doubt that Barr told Congress the truth about this as well. In the CBS interview, Barr noted his disagreement with the legal analysis in the special counsel report, describing it as “the views of a particular lawyer or lawyers.” “So we applied what we thought was the right law,” Barr said. So, Barr applied his own legal theory instead? Barr then added, “but then we didn’t rely on that.” Confusing, isn’t it?

In a press briefing, the attorney general admitted that he “did not rely solely on” his views of the right law in analyzing obstruction. So he did rely on his own theory in part? That’s sharply different from what Barr testified. It raises the question whether his testimony was deliberately untruthful.

Finally, there’s Barr’s four-page summary itself. Many legal experts believe it basically “conceal[ed] or cover[ed] up by a[] trick, scheme, or device … material fact[s]” of the Mueller report. Although Barr released the summary to the public, it was addressed directly and delivered to Congress. It, too, should be a part of any investigation.

* * *

The Mueller hearing may well shed even greater light on Barr’s statements to Congress. Members of Congress can ask simple questions such as whether Mueller agrees that the evidence in his report shows that Trump was “falsely accused” of conspiring with Russia in the 2016 election (compare Barr’s statements to Congress on that matter). Mueller’s truthful responses may thus highlight not only concerns about the President but also about the public deception engaged in by the Attorney General.

We can’t draw firm conclusions about whether Barr violated the criminal law without knowing more, including what conversations he had with the White House about opening investigations and what standard he used in reviewing the Mueller report. That’s where an independent review mechanism needs to come in.

Barr’s misleading and contradictory testimony is too serious to ignore. A special counsel must look into the matter just as the special counsel looked into whether then-Attorney General Sessions lied to Congress about Russia contacts.  Congress must make it clear that it will not tolerate deceptions by any witness, including the Attorney General himself.

 

Photo: Sen. Kamala Harris (D-CA) listens as Attorney General William Barr testifies before the Senate Judiciary Committee May 1, 2019 on the Justice Department’s investigation of Russian interference with the 2016 presidential election (Alex Wong/Getty Images)

 

About the Author(s)

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).

Hon. Elizabeth Holtzman

Holtzman is a practicing attorney with Herrick Feinstein LLP in NY. She was a four term Congresswoman who served on the House Judiciary Committee during Watergate and voted to impeach Richard Nixon.