michael barbaro

From The New York Times, I’m Michael Barbaro. This is “The Daily.” Today: The special counsel was supposed to make the decision about whether President Trump committed a crime. Why did the attorney general do it instead? It’s Tuesday, March 26. Mike Schmidt, it has been 48 hours since the attorney general, Bill Barr, sent his summary of the special counsel’s report to congressional leaders. Where are you at in your thinking about all this?

michael schmidt

In a certain way, I’m starting to think that the special counsel regulations, the way that this investigation was set up, has failed.

michael barbaro

What do you mean failed? Do you mean, because this investigation didn’t produce criminal charges against the president?

michael schmidt

No, no, no. It’s not about that. It’s about the perception of politics in criminal decisions. Bob Mueller, the special counsel, operated under certain regulations that were designed to protect him and his investigation but also give the public assurances that investigators who were free of politics pursued the facts. In this case, there’s a perception problem.

michael barbaro

What do you mean by perception problem?

michael schmidt

The special counsel is supposed to go out, look into the issues that are in question — in this case, collusion and obstruction of justice — and no matter how hard the questions they are looking at are, make a determination about whether someone broke the law or not.

archived recording 1 Because obviously, Mueller did not feel comfortable making a decision in either direction on obstruction. archived recording 2 Mueller said, you know what, I can’t decide. It’s up to you.

michael schmidt

In the case of the president, Mueller made no conclusion with respect to obstruction.

archived recording 1 I would love to learn more about what was happening behind the scenes and why Mueller decided to punt. archived recording 2 Prosecutors get paid to make determinations. That’s what we do.

michael schmidt

So that meant that the special counsel, the person who had been put there to protect themselves from politics, had no determination.

archived recording That’s not the job of the prosecutor. The job of the prosecutor is to decide yes or no.

michael schmidt

And that left it up to the political appointees, the attorney general and deputy attorney general, people who had been placed there by Donald Trump.

archived recording Barr says he and the deputy attorney general, Rod Rosenstein, concluded that that conduct did not reach the threshold of a crime.

michael barbaro

So you’re saying that because Mueller punted the decision on obstruction of justice to Barr, and it was Barr who then cleared the president of that charge, the special counsel failed because there was no apolitical figure reaching a conclusion on one of the central questions of the investigation.

michael schmidt

Correct. Part of the reason the special counsel is there is to give the public the assurance that a investigator who’s not politically tied to the person under investigation is doing the work and following the facts. And in this case, that person, Mueller, said, I can’t come to a determination on this, and kicked it up to the folks above him who are the political appointees. By not reaching a conclusion, Mueller left the door open for Barr to come in and make a determination that he didn’t think there was enough to say the president broke the law. But Barr has another perception problem.

michael barbaro

What’s that?

michael schmidt

Back in 2018, Bill Barr, who had been the attorney general under George H. W. Bush and was now semi-retired, he, unprompted, wrote a memo that ended up in the hands of the Trump legal team that essentially said there is a very, very high bar for a president to be charged with obstruction of justice. And in that argument, he says that in order to prove obstruction, you also have to prove the underlying crime. In this case, collusion. So to make a case, you have to be able to establish both.

michael barbaro

And Barr writes this long before his attorney general. What is meaningful about that memo and that legal logic about obstruction of justice now?

michael schmidt

In the letter he sends to Congress this weekend in which he explains the decision on what they did with the president on obstruction, he says that one of the reasons that it’s so difficult to make this case is that they can’t show that the president was part of collusion.

michael barbaro

An underlying crime that would justify a charge of obstruction of justice.

michael schmidt

Correct. I actually want to — can I read from it?

michael barbaro

Yeah.

michael schmidt

In his letter, he said, quote, “In making this determination, we noted that the special counsel recognized that ‘the evidence does not establish that the president was involved in an underlying crime related to Russian election interference,’ and that, while not determinative, the absence of such evidence bears upon the president’s intent with respect to obstruction.”

michael barbaro

So just to translate that for us, what exactly is he saying?

michael schmidt

He’s saying that unless you can show that the president was trying to obstruct to cover up another crime, then the obstruction is sort of hollow. It doesn’t really resonate because there’s nothing really to cover up.

michael barbaro

So that is a clear echo to the original Barr memo from 2018 written to the Trump administration. And it sounds like what you’re saying is that because Barr wrote this memo before he was nominated as attorney general, the White House knew he held this position when it came to obstruction of justice. And the fact that it ended up being that legal interpretation that is used to help clear the president of wrongdoing when it comes to obstruction of justice — that starts to feel quite political.

michael schmidt

Here’s the problem. Barr may be right. He may have come to the correct conclusion based on the law and the fact. But because Mueller took a pass in this highly weird thing where he didn’t want to make a call about whether the president broke the law on obstruction, it ended up in Barr’s hands. And he looks like the ultimate and only decision maker. And he, because of politics, has perception issues on this decision.

michael barbaro

Well, let’s talk about the actual conclusion that Barr reached. What do you make, Mike, of his rationale? Is there a broad legal consensus around Barr’s argument here that obstruction of justice depends on an underlying crime?

michael schmidt

I think prosecutors would say that they don’t want to bring cases against folks who did not obstruct an actual criminal act. Legally, you could make the case, but most prosecutors wouldn’t want to because it’s not worth their time and energy to go after someone who is trying to cover up something that’s not criminal.

michael barbaro

Got it.

michael schmidt

But in this case, I would say that there were crimes that the president may have wanted to cover up.

michael barbaro

Hmm. Which ones?

michael schmidt

Well —

archived recording Breaking news. President Trump’s former longtime attorney and fixer, Michael Cohen, pleading guilty to eight counts of campaign finance violation, including, and importantly, hush money payments to Stormy Daniels and Karen McDougal — hush money payments that Cohen said then-candidate Donald Trump directed. Cohen’s stunning words today, and I quote, “in coordination and at the direction of a candidate for federal office.”

michael schmidt

The president has been named essentially as an unindicted co-conspirator in Michael Cohen’s payments to women before the election for violating campaign finance.

archived recording Prosecutors say the hush money payments Cohen made violate campaign finance laws. President Trump calls them a simple private transaction.

michael schmidt

Donald Trump knew about those payments in May, June, July of 2017. So if you’re the president and Bob Mueller comes along and you know that you made these payments, you think, well, if this thing really gets out of hand, I could have some problems. So in the summer of 2017 the president’s talking about trying to fire Mueller.

archived recording Now, according to The New York Times and The Washington Post, the White House is laying the groundwork to try to discredit or undermine Mueller’s investigation.

michael schmidt

Why was he really talking about that? Was it because of Russia? Was it because it was simply a distraction? Or did he want to ensure that Mueller didn’t go too far into his personal finances?

archived recording Multiple U.S. officials tell NBC News Mueller is gathering documents involving the financial records and businesses of dealings close to the Trump campaign, something the president says is a red line — a red line, except following the money is what Mueller does.

michael schmidt

Barr says, look, he had nothing to cover up on Russia, but his same Justice Department has essentially said he’s an unindicted co-conspirator in a campaign finance case. The Justice Department is looking at his inaugural committee —

archived recording Putting all information related to inaugural donors, vendors, contractors, bank accounts.

michael schmidt

— and his businesses. And Mueller’s investigation has led to great embarrassment for the president.

archived recording 1 President Trump’s former national security adviser Michael Flynn just hours away from finding out if he’ll go to prison for lying to the F.B.I. about his Russia contacts. archived recording 2 Also, breaking tonight, the president’s former campaign chairman, Paul Manafort, found guilty on eight counts. archived recording 3 Roger Stone, longtime Trump associate and adviser, was taken into custody by the F.B.I.

michael schmidt

Even though he was cleared on collusion, more than a handful of his advisors and associates have pled guilty to different charges. So was there really nothing to obstruct?

michael barbaro

So you’re saying that Barr’s rationale that there is no obstruction, because there were no crimes to obstruct, doesn’t really hold up, because there were crimes, they just weren’t the crimes of coordinating with Russia to influence the election?

michael schmidt

I’m saying that a day after Barr sent the letter, as we look at it, that’s another part of it that doesn’t make complete sense yet.

michael barbaro

Mike, is that one more way in which, by kicking the decision to Bill Barr, the special counsel put this in the political realm of interpretation by political actors in a political system that might have been better left to an independent figure as the special counsel rules envisioned?

michael schmidt

It means that instead of Mueller explaining the determination, Barr is doing it. And that just exposes the decision to the politics that Mueller was there to protect it from. And the head-scratching part of it is, so you went through this whole exercise of creating a special counsel.

michael barbaro

To be apolitical.

michael schmidt

To be apolitical. And in the end, the special counsel takes a pass, and it ends up right back in the hands of the political appointees. Well, why did you need a special counsel?

michael barbaro

Right. And to that point, I guess the question is, why did Robert Mueller kick this question of obstruction of justice to the attorney general knowing full well everything you just explained, that that would make whatever decision Barr made feel political and in violation of the spirit of having a special counsel? He arguably handed off his central job to a political appointee.

michael schmidt

Well, we don’t know, and we’re trying to find out. But here are two possibilities. Maybe, one, he didn’t want to box in Barr. He didn’t want to put him in a situation where he may appear to be disagreeing with the investigators. The second is that the legal issues around this are very difficult to unravel because it’s caught up in the unique position the president has as the head of the executive branch. And it may just be so hard to untangle them that Mueller kind of threw up his hands and said, this is a highly unusual situation. I’m going to let the Justice Department make the call.

michael barbaro

It’s interesting. You said that maybe Mueller doesn’t want to box in Bill Barr, but it feels like it also puts Barr in a very weird position, because Barr’s options are all about degrees of political once Mueller kicks the decision to him. If Barr makes a decision about obstruction, yes, that seems political. But if he sends Mueller’s findings along to Congress with an open-ended question of whether or not the president obstructed justice, he leaves it to a Democratically controlled House to answer the question. And honestly, that feels as political, maybe even more political, than the attorney general making the call himself.

michael schmidt

In a sense, maybe Barr was damned if he did and damned if he didn’t. I don’t know.

michael barbaro

Do you think that Mueller would have anticipated all of this, that this would put Barr in a political position and would essentially violate the spirit of what the special counsel was all about?

michael schmidt

It’s one of the mysteries right now. It’s one of the questions we’re trying to answer. Why is it that Mueller couldn’t come to a conclusion? Came to a conclusion on collusion, said it didn’t happen. But obstruction — wouldn’t exonerate the president.

michael barbaro

Mike, it seems like before this report came out over the weekend, the main concern from Congress about Attorney General Bill Barr was whether he would ever release the full Mueller report to Congress, not that he would actually weigh in on whether the president committed crimes, because the idea that Mueller would not reach a conclusion wasn’t really conceivable. In retrospect, was that a mistake, that we weren’t focused enough on the possibility that Barr might weigh in on something like this and that he had already kind of told us how he would act in this situation?

michael schmidt

Like the folks who put the special counsel regulations together 20 years ago, we, just a few weeks ago, couldn’t predict the future, and we couldn’t come up with the idea that Mueller, who’s been there for two years, would, at the end of the day, throw up his hands and say, I can’t make a determination on this. I spoke to a former senior Justice Department official today who said he had never seen an example in his entire career of prosecutors saying, we just can’t make a call here.

michael barbaro

I wonder if the way that this has played out, in such a political manner — Mueller sends a decision to Barr, Barr decides not to pursue obstruction — how much does that influence what comes next, how Congress now conducts its side of this investigation, and how it treats the Mueller report?

michael schmidt

Well, if Mueller had said there was no obstruction, and Barr put that out, then the Democrats would really have nothing to work with. But because Mueller didn’t make a decision, it now opens the door for the Democrats to say, we really need to take a look at everything that was here. Why was it that Mueller couldn’t make a decision? How did Bill Barr assess this? And they actually have something to work with. It gives them an issue to continue to prod on the obstruction of justice. Because if Mueller had cleared the president, the bar, no pun intended, for them to overcome to even investigate it would’ve been pretty high.

michael barbaro

So counterintuitively, because of the way this played out, because of what Mueller did or didn’t do, and what Barr did as a political figure in all this, he has given someone like Jerry Nadler, the chairman of the House Judiciary Committee, a reasonably good reason to keep pushing forward for as much evidence as possible.

michael schmidt

Correct. And I think that’s what we’ll see.

michael barbaro

Thank you, Mike.

michael schmidt