What’s Bill Barr Up To?

July 22, 2019 11:39 p.m.

I’m very curious what Bill Barr is up to with this letter to Robert Mueller insisting he not testify to anything beyond the four corners of the his report, and then only the unredacted points. You can see the letter here. This whole exercise has the Department of Justice acting like the White House Counsel’s Office. Indeed, in some respects it seems to have the DOJ operating more like the President’s own personal attorneys.

The letter begins by noting that Mueller has already said he doesn’t want to testify beyond what is contained in his report and then says it expects him to keep to that. Obviously, what he said was his preference has no binding power. There’s various stuff of that nature. But the letter really gets down to brass tacks in the penultimate paragraph where it says Mueller cannot testify to anything beyond what is stated in the report because the entire investigation is covered by executive privilege.

Finally, any testimony must remain within the boundaries of your public report because matters within the scope of your investigation were covered by executive privilege, including information protected by law enforcement, deliberative process, attorney work product, and presidential communications privileges. These privileges would include discussion about investigative steps or decisions made during your investigation not otherwise described in the public version of your report. Consistent with standard practice, Department witnesses should decline to address potentially privileged matters, thus affording the Departmentthe full opportunity at a later date to consider particular questions and possible accommodations that may fulfill the committees’ legitimate need for information while protecting Executive Branch confidentiality interests.

First, this claim of executive privilege is preposterous on its face. Executive privilege is a penumbra of confidentiality the President is accorded to allow him or her to solicit advice and have decision making processes free from open-ended scrutiny from Congress. The idea that an investigation of the President is itself covered by executive privilege is simply an absurdity. I’ve seen the arguments they’ve used to try to paste this argument together; none of them hold water.

What’s more interesting to me is just what the angle is here. According to the letter, Mueller solicited the DOJ’s input on what privileges applied back on July 10th. So one might see this not as trying to box Mueller in but simply responding to a request for guidance from Mueller himself. But coming less than 48 hours before the testimony and going public like this, it sounds a lot more like an effort to box him in. If Mueller’s on board far more effective to have these discussions privately.

If Barr really thought this was a credible argument, it seems obvious that he would have made this a focus of the negotiations with the committees. Tossing it in at the end like this sounds like something different, like something they knew wouldn’t fly in any legal context and which they weren’t confident Mueller would accept.

This isn’t to say that I expect Mueller to go beyond the report. He’s told us that’s all he wants to do and all he plans to do! But clearly he can’t literally do no more than quote from the report. And Barr and the White House seem worried about even those minor digressions or expansions.

The entirety of this exercise is a sham. Congress is a coequal branch of government. Barr is saying, on no credible legal basis, that Congress has no right to know anything about an investigation of the President – one which concluded with a report that basically invited an impeachment inquiry – other than what was released in the public report. That’s an outrageous assertion of executive branch domination of the legislative branch. But again, I’m most interested in just what’s going on between Barr and Mueller. That’s really not clear from this letter, which raises many more questions on that front than it puts to rest.

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