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William Barr Testifies Before the Senate Judiciary Committee. Aired 10:30-11a ET

Aired May 1, 2019 - 10:30   ET


[10:30:03] WILLIAM BARR, ATTORNEY GENERAL: Thank you, Mr. Chairman and Ranking Member Feinstein, members of the committee.

During my confirmation process there were two concerns that dominated, as I think you will all agree. The first was whether I would in any way impede or curtail Special Counsel Mueller's investigation. And the second, whether I would make public his final report.

As you see, Bob Mueller was allowed to -- to complete his work as he saw fit. And as for the report, even though the applicable regulations require that the report is to be made to the A.G. and is to remain confidential and not be made public, I told this committee that I intended to exercise whatever discretion I had to make as much of the report available to the public and to congressional leaders as I could consistent with the law. This has been done.

I arrived at the department on February 14th, and shortly thereafter I asked it to be communicated to Bob Mueller's team that in preparing the report, we requested that they make it so we could readily identify 6(e) material so we could quickly process the report.

GRAHAM: Could you tell the public what 6(e) is?

BARR: 6(e) is grand jury material that cannot be made public. It's prohibited by statute. And I wanted that identified so we could redact that material and prepare the report for public release as quickly as we could.

When I arrived at the department, I found -- and was eventually briefed in on the investigation. I found that the deputy attorney general and his principal associate deputy, Ed O'Callaghan, were in regular discussions with the counsel's office, had been. And they communicated this request and had discussions about the -- both the timing of the report and the nature of the report.

On March 5th, I met with Bob, at the suggestion of the deputy and the principal associate deputy, Bob Mueller. I met with Bob Mueller to get a readout on what his conclusions would be.

On March 25th -- and at that meeting, I asked -- I reiterated to -- to Special Counsel Mueller that in order to have the shortest possible time before I was in a position to release the report, I asked that they identify 6(e) material. When I received the report on March 22nd, and we were hoping to have that easily identified, the 6(e) material, unfortunately it did not come in that form. And it quickly became apparent that it would take about three or four weeks to identify that material and other material that had to be redacted. So there was necessarily going to be a gap between the receipt of the report and getting the full report out publicly.

The deputy and I identified four categories of information that we believed required redaction. And I think you will all know of them, but they were the grand jury material, the 6(e) material; information that the intelligence community advised would reveal sensitive sources and methods; information that if revealed at this stage would impinge on the investigation or prosecution of related cases; and information that would unfairly affect the privacy and reputational interests of peripheral third parties.

We went about redacting this material in concert with the Special Counsel's Office. We needed their assistance to identify the 6(e) material in particular. The redactions were all carried out by DOJ lawyers with special counsel lawyers, in consultation with intelligence community.

The report contained a substantial amount of material over which the president could have asserted executive privilege, but the president made the decision not to assert executive privilege and to make public as much of the report as we could, subject to the redactions that we thought required.

Now, as you see, the report has been lightly redacted. The public version has been estimated to have only 10 percent redactions. Almost -- the vast bulk of those redactions relate to -- are in Volume 1, which is the volume that deals with collusion, and it relates to existing, ongoing cases.


Volume 2 had only about 2 percent redactions for the public version, so 98 percent of Volume 2, dealing with obstruction, is available to the public.

We have made a version of the report available to congressional leaders that only contains redactions of grand jury material. For this version, overall redactions are less than 2 percent for the whole report, and for Volume 2, dealing with obstruction, they are less than one-tenth of 1 percent.

So given the limited nature of redactions, I believe that the public -- publicly released report will allow every American to understand the results of the special counsel's work.

By now everyone is familiar with the special counsel's bottom-line conclusions about Russian attempts to interfere in the election. In Volume 1, the special counsel found that the Russians engaged in two distinct schemes. First, the Internet Research Agency, a Russian entity with close ties to the Russian government, conducted a disinformation and social media operation to sow discord among Americans.

Second, the GRU, Russian military intelligence, hacked into computers and stole e-mails from individuals affiliated with the Democratic Party and Hillary Clinton's campaign.

The special counsel investigated whether anyone affiliate with President Trump's campaign conspired or coordinated with these criminal schemes. They concluded that there was not sufficient evidence to establish that there had been any conspiracy or coordination with the Russian government or the IRA.

As you know, Volume 2 in -- of his report dealt with obstruction, and the special counsel considered whether certain actions of the president could amount to obstruction. He decided not to reach a conclusion. Instead, the report recounts 10 episodes and discusses potential legal theories for connecting the president's actions to elements of obstruction offenses.

Now, we first heard that -- the special counsel's decision not to decide the obstruction issue at a -- at the March 5th meeting when he came over to the department. And we were, frankly, surprised that -- that they were not going to reach a decision on obstruction. And we asked them a lot about the reasoning behind this and the basis for this.

Special Counsel Mueller stated three times to us in that meeting in response to our questioning that he emphatically was not saying that but for the OLC opinion he would have found obstruction. He said that in the future the facts of a case against a president might be such that a special counsel would recommend abandoning the OLC opinion, but this is not such a case.

We did not understand exactly why the special counsel was not reaching a decision. And when we pressed him on it, he said that his team was still formulating the explanation.

Once we heard that the special counsel was not reaching a conclusion on obstruction, the deputy and I discussed and agreed that the department had to reach a decision. We had the responsibility to assess the evidence as set forth in the report and to make the judgment.

I say this because the special counsel was appointed to carry out the investigative and prosecutorial functions of the department and to do it as part of the Department of Justice. The powers he was using, including the power of using a grand jury and using compulsory process, exists for that purpose -- the function of the Department of Justice in this arena -- which is to determine whether or not there has been criminal conduct. It's a binary decision: Is there enough evidence to show a crime and do we believe a crime has been committed?

We don't conduct criminal investigations just to collect information and put it out to the public. We do so to make a decision. And here we thought there was an additional reason, which is this was a very public investigation, and we had made clear that the results of the investigation were going to be made public. And the deputy and I felt that the evidence developed by the special counsel was not sufficient to establish that the president committed a crime, and therefore it would be irresponsible and unfair for the department to release a report without stating the department's conclusions, and thus leave it hanging as to whether the department considered there had been criminal conduct.

[10:40:00] So the deputy attorney general and I conducted a careful review of the report with our staffs and legal advisers, and while we disagreed with some of the legal theories and felt that many of the episodes discussed in the report would not constitute obstruction as a matter of law, we didn't rest our decision on that. We took each of the 10 episodes and we assessed them against the analytical framework that had been set forth by the special counsel, and we concluded that the evidence developed during the special counsel's investigation was not sufficient to establish that the president committed an obstruction of justice offense.

Let me just talk a little bit about this March 24th letter and -- and Bob Mueller's letter I think on the 20 -- which I received on the 28th.

When the report came in on the 22nd and we saw it was going to take a great deal of time to get it out to the public, I made the determination that we had to put out some information about the bottom line.

The body politic was in a high state of agitation. There was massive interest in learning what the bottom-line results of Bob Mueller's investigation was particularly was, particularly as to collusion. Former government officials were confident -- confidently predicting that the president and members of his family were going to be indicted. There were people suggesting that if it took any time to turn around the report and get it out it would mean that the president was in legal jeopardy.

So I didn't feel that it was in the public interest to allow this to go on for several weeks without saying anything. So I decided to simply state what the bottom-line conclusions were, which is what the department normally does, make a binary determination: Is there a crime or isn't there a crime?

We -- we prepared the letter for that purpose, to state the bottom- line conclusions. We used the language from the report to state those bottom-line conclusions. I analogize it to announcing after an extended trial what the verdict of the trial is pending release of the full transcript. That's what we were trying to do: notify the people as to the bottom line conclusion. We were not trying to summarize the 410-page report.

So we released that -- I offered Bob Mueller the opportunity to review that letter before it went out and he declined. On Thursday morning, I received -- it was probably received at the department Wednesday night or evening, but on Thursday morning I received a letter from Bob, the letter that's just been put into the record. And I called Bob and said, "What's the issue here? Are you" -- and I asked if he was suggesting that the March 24th letter was inaccurate, and he said no, but that the press reporting had been inaccurate, and that the press was reading too much into it. And I asked him, you know, specifically what his concern was, and he said that his concern focused on his explanation of why he did not reach a conclusion on obstruction, and he wanted more put out on that issue.

He wanted -- he argued for putting out summaries of each volume -- the executive summaries that had been written by his office. And if not that, then other material that focused on the issue of why he didn't reach the obstruction question.

But he was very clear with me that he was not suggesting that we had misrepresented his report.

I told Bob that I was not interested in putting out summaries, and I wasn't going to put out the report piecemeal. I wanted to get the whole report out, and I thought summaries by very definition, regardless of who prepared them, would be under-inclusive and we'd have, sort of, a series of different debates and public discord over each tranche of information that went out. And I wanted to get everything out at once and we should start working on that.

And so the following day I put out a letter explaining the process we were following and stressing that the March 24th letter was not a summary of the report, but a statement of the principal conclusions, and that people would be able to see Bob Mueller's entire thinking when the report was made public.

So I'll end my statement there, Mr. Chairman, and I'm glad to take any questions.

GRAHAM: Thank you very much.

[10:45:00] As to the actual report itself, was there ever an occasion where you wanted to -- something was redacted from the report that Mr. Mueller objected to?

BARR: I -- I -- I wouldn't say "objected to."

My understanding is -- the categories were defined by me and the deputy. I don't think that -- I have no -- I don't believe...

GRAHAM: Did you work with him to redact the report?

BARR: Right. Those categories were executed by DOJ lawyers working with his lawyers. I think there may be a few judgment calls -- very few -- as to whether or not something as a prudential matter should be treated as a reputational interest or something, so there may have been some occasions of that. But as far as I'm aware...

GRAHAM: As I understand it, you did not want to hurt somebody's reputation unless it really affected the outcome. Is that correct?

BARR: Right.

GRAHAM: So was there any disagreement about 6(e) material?

BARR: Not that I'm aware of.

GRAHAM: Any disagreement about classified information?

BARR: Not that I'm aware of.

GRAHAM: OK. So the conclusions in your page -- four-page summary you think accurately reflect his bottom line on collusion. Is that correct?

BARR: Yes.

GRAHAM: And you can read it for yourself if you got any doubt.

As to obstruction of justice, were you surprised he was going to let you decide?

BARR: Yes, I was surprised.

I -- I think the very -- the function he was carrying out, the prosecutive -- investigative and prosecutive function is performed for the purpose of...

GRAHAM: How many people did he actually indict? Do you know?

BARR: I can't remember off the top of my head.

GRAHAM: It was a lot.

BARR: Yes.

GRAHAM: So he actually has the ability to indict if he wants to. He's used that power during the investigation. Is that correct?

BARR: That's correct.

And the other thing that was confusing to me is that the investigation carried on for awhile as additional episodes were looked into; episodes involving the president. And 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?

GRAHAM: So, did you consult Deputy Attorney General Rosenstein about the obstruction matter?

BARR: Constantly. Yes.

GRAHAM: So, was he in agreement with your decision not to proceed forward?

BARR: Yes.

I'm sorry, the agreement what? Not? GRAHAM: Not to proceed forward with obstruction?

BARR: Right. Right. Right.

GRAHAM: OK. So, very quickly, give us your reasoning why you think it would be inappropriate to proceed forward on obstruction of justice in this case?

BARR: Well, generally speaking, an obstruction case typically has two aspects to it.

One, there's usually an underlying criminality that...

GRAHAM: Let's stop right there.

BARR: Yes.

GRAHAM: Was there an underlying crime here?


GRAHAM: So, usually there is?

BARR: Usually. But -- it's not necessary, but the typical -- sort of the paradigmatic case is, there's an underlying crime and then the person implicated or people implicated are concerned about that criminality being discovered, take an inherently malignant act, as the Supreme Court has said, to -- to obstruct that investigation, such as destroying documents.

GRAHAM: So, what are the examples that are people are worried about, that he fired Comey to stop the Russia investigation? That's one of the concerns people had.

Let me tell you a little bit about Comey.

"I do not have confidence in him" -- Comey -- "any longer." That was Chuck Schumer November 2nd, 2016.

"I think he" -- Comey -- "should take a hard look at what he has done. And I think it would not be a bad thing for the American people if he did step down." Bernie Sanders, January 15th, 2017.

"The president ought to fire Comey immediately. And he ought to initiate an investigation." That is Congressman Nadler, November 14th, 2016.

Did you have a problem with the way Comey handled the Clinton e-mail investigation?

BARR: Yes. I said so at the time.


So, given the fact that to a lot of people Comey should be fired, did you find that to be a persuasive act of obstructing justice? BARR: No.

I think even the report, at the end of the day, came to the conclusion, if you -- if you read the analysis, that -- that a reason that loomed large there for his termination was his refusal to tell the public what he was privately telling the president, which was that the president was not under investigation.


GRAHAM: As to where we go forward -- as to how we go forward, would you recommend that this committee and every other committee of Congress do our best to harden our infrastructure against future Russian attacks?

BARR: Absolutely, yes.

GRAHAM: Do you think Russia is still up to it?

BARR: Yes.

GRAHAM: Do you think other countries may get involved in our elections in 2020?

BARR: Yes.

GRAHAM: So you would support an effort by Congress, working with administration, to harden our electoral infrastructure?

BARR: Yes.

GRAHAM: Is that one of the takeaways of the Mueller report?

BARR: Yes.

GRAHAM: Do you share my concerns about the FISA warrant process?

BARR: Yes.

GRAHAM: Do you share my concerns about the counterintellingence investigation, how it was opened and why it was opened?

BARR: Yes.

GRAHAM: Do you share my concerns that the professional -- lack of professionalism in the Clinton e-mail investigation is something we should all look at?

BARR: Yes.

GRAHAM: Do you expect to change your mind about the bottom-line conclusions of the Mueller report?


GRAHAM: Do you know Bob Mueller? BARR: Yes.

GRAHAM: Do you trust him?

BARR: Yes.

GRAHAM: How long have you known him?

BARR: Thirty years, roughly.

GRAHAM: You think he had the time he needed?

BARR: Yes.

GRAHAM: You think he had the money he needed?

BARR: Yes.

GRAHAM: You think he had the resources he needed?

BARR: Yes.

GRAHAM: Do you think he did a thorough job?

BARR: Yes. And I think he feels he did a thorough job and -- and had adequate evidence to make the calls.

GRAHAM: Do you think the president's campaign in 2016 was thoroughly looked at in terms of whether or not they colluded with the Russians?

BARR: Yes.

GRAHAM: And the answer is no, according to Bob Mueller.

BARR: That's right.

GRAHAM: He couldn't decide about obstruction; you did. Is that correct?

BARR: That's right.

GRAHAM: Do you feel good about your decision?

BARR: Absolutely.

GRAHAM: Thank you very much.



Mr. Attorney General, the special counsel's report describes how the president directed White House Counsel Don McGahn to fire Special Counsel Mueller and later told McGahn to write a letter, quote, "for our records," end quote, stating that the president had not ordered him to fire Mueller. The report also recounts how the president made repeated efforts to

get McGahn to change his story. Knowing that McGahn believes the president's version of events was false, the special counsel found, and I quote, "substantial evidence," end quote, that the president tried to change McGahn's account in order to prevent further scrutiny of the president towards the investigation.

Special counsel also found that McGahn is a credible witness with no motive to lie or exaggerate, given the position he held in the White House.

Here's the question: Does existing law prohibit efforts to get a witness to lie, to say something the witness believes is false?

BARR: Yes. Lie to the government, yes.

FEINSTEIN: And what law is that?

BARR: Obstruction statutes.

FEINSTEIN: The obstruction statute. And you don't have it, I guess, before you?

BARR: Well, I'm not sure which one they were referring to here. It was probably 1512(c)(2).

FEINSTEIN: So, these things in effect constitute obstruction?

BARR: Well, you're talking in general terms. You're not talking...

FEINSTEIN: What I'm talking about specifically -- yes, you're correct in a sense, that a substantial -- the special counsel in his report found substantial evidence that the president tried to change McGahn's account in order to prevent, and this is a quote, "further scrutiny of the president toward the investigation," end quote.

The special counsel also found "McGahn is a credible witness with no motive to lie or exaggerate."

So, what I'm asking you, then, is that a credible charge under the obstruction statue?

BARR: We felt that -- we felt that that episode, the government would not be able to establish obstruction.

The -- if you go back and if you look at the episode where McGahn -- the president gave McGahn an obstruction -- an instruction, McGahn's version of that is quite clear and each time he gave it, which is that the instruction said, "Go to Rosenstein, raise the issue of conflict of interest and Mueller has to go because of this conflict of interest."


So, there's no question that that -- that the -- whatever instruction was given to McGahn had to do with conflict -- Mueller's conflict of interest.

Now, the president later said that what he meant was that the conflict of interest should be raised with Rosenstein but the decision should be left with Rosenstein.

On the other end of the spectrum, it appears that McGahn felt it was more directive, and that the president was essentially saying, "Push Rosenstein to invoke a conflict of interest to push Mueller out."

Wherever it fell on that spectrum of interest, the New York Times story was very different. The New York Times story said flat out that the president directed the firing of Mueller; told McGahn "Fire Mueller."

Now, that -- there's something very different between firing a special counsel outright, which suggests ending the investigation, and having a special counsel removed for conflict, which suggests that you're going to have another special counsel.

So the fact is that even under McGahn's -- and -- and then, as the report says and recognizes, there is evidence the president truly felt that the Times article was inaccurate and he wanted McGahn to correct it.

So we believe that it would be impossible for the government to establish beyond a reasonable doubt that the president understood that he was instructing McGahn to say something false because it wasn't necessarily false.

Moreover, McGahn had weeks before already given testimony to the -- to the special counsel and the president was aware of that. And as the report indicates, it could also have been the case that what he -- that he was primarily concerned about press reports and making it clear that he never outright directed the firing of Mueller.

So in -- so in terms of the request to ask McGahn to memorialize that fact, we do not think in this case that the government could show corrupt intent beyond a reasonable doubt.

FEINSTEIN: Just to finish this, but you still have a situation where a president essentially tries to change the lawyer's account in order to prevent further criticism of himself.

BARR: Well, that's not a crime.

FEINSTEIN: So you can, in this situation, instruct someone to lie?

BARR: No, it has to be -- well, to be obstruction of justice, the lie has to be tied to impairing the evidence in a particular proceeding.

McGahn had already given his evidence and I think -- I think it would be plausible that the purpose of McGahn memorializing what the president was asking was to make the record that the president never directed him to fire. And there is a distinction between saying to someone, "Go fire him. Go fire Mueller," and saying, "Have him removed based on conflict." FEINSTEIN: And what would...

BARR: They have different results.

FEINSTEIN: What would that conflict be?

BARR: Well, the difference between them is if you remove someone for a conflict of interest, then there would be another -- presumably another person appointed.

FEINSTEIN: Yes, but wouldn't you have to have it, in this kind of situation, an identifiable conflict that made sense or else doesn't it just become a fabrication?

BARR: Well, this -- now we're going to shift from the issue of writing the -- the memo or somehow putting out a release later on and the issue of the actual direction to McGahn.

So the question on the direction to McGahn has a number of different levels to it.

And first, as a matter of law, I think the department's position would be that the president can direct the termination or the replacement of a special counsel. And as a matter of law, the obstruction statute does not reach that conduct.

[10:59:45] Putting that aside, the next question would be, "Even if it reached the conduct, could you here establish corrupt intent beyond a reasonable doubt?" What makes this case very interesting is that when you take away the fact that there were no underlying criminal conduct.