Jeff Sessions, then the attorney general, ended a phone call and returned to the Oval Office. It wasn’t long before President Donald Trump was in an angry rage.
Sessions, since unceremoniously fired, had just taken a phone call from Deputy Attorney General Rod Rosenstein, who informed him he had appointed former FBI Director Robert S. Mueller III as a special counsel to look into Russia’s 2016 election meddling, including whether there was coordination with Trump’s campaign.
It fell to Sessions to inform the president.
A distraught Trump “slumped back in his chair and said, ‘Oh my God. This is terrible. This is the end of my presidency. I’m f—ed,’” according to notes Jody Hunt, Sessions’ chief of staff, provided to Mueller’s team.
Watch: Barr on Mueller report ahead of release: ‘No collusion’
Why did the president react that way?
“Everyone tells me if you get one of these independent counsels, it ruins your presidency. It takes years and years, and I won’t be able to do anything. This is the worst thing that ever happened to me,” Trump said, according to Hunt’s notes.
Hunt recalled a president who turned angry as he laid into his hand-picked attorney general: “How could you let this happen, Jeff?”
Only that what had happened wasn’t exactly what Trump thought.
That’s because the president was thinking of special investigators such as Lawrence Walsh and Kenneth Starr, who were appointed “independent” prosecutors or counsels to look into actions taken by Presidents Ronald Reagan (Iran-Contra) and Bill Clinton (Whitewater).
The authorities of Walsh and Starr came from the 1978 Ethics in Government Act, which allowed attorneys general to “request that a specially appointed three-judge panel appoint an outside individual to investigate and prosecute alleged violations of criminal law,” according to a Congressional Research Service report that was updated last month.
Investigators like Walsh and Starr had the “full power and independent authority to exercise all investigative and prosecutorial functions and powers of the Department of Justice” within their jurisdiction, according to that law.
But members from both parties grew weary of “independent” prosecutors and counsels after Iran-Contra and Whitewater, and in 1999, Congress allowed the 1978 law to expire.
“Ultimately, debate over the scope, cost, and effect of the investigations … resulted in the law’s expiration and nonrenewal,” according to CRS.
But inside the Justice Department, there was a collective understanding that there would be future scandals that would require the appointment of an investigator from outside an administration to objectively gather and analyze evidence and testimony, and then present conclusions to the American people.
So in 2000, DOJ officials crafted guidelines allowing the appointment of special counsels to conduct, according to CRS, “specific investigations or prosecutions that may be deemed to present a conflict of interest if pursued under the normal procedures of the agency.”
Fast-forward 17 years, to that day in May 2017, when Sessions returned to an Oval Office meeting to break what would be, to his boss, some bad news.
The Justice Department, at that time, had been conducting a probe of Russia’s 2016 election meddling and possible coordination with Trump’s campaign. But the president eight days earlier had fired FBI Director James B. Comey, admitting later to NBC’s Lester Holt in a television interview that the DOJ probe was on his mind when he did so.
So Rosenstein — who was leading the Justice Department investigation after Sessions recused himself because of his own contacts with Russians while advising Trump’s 2016 campaign — called in Mueller under those 2000 DOJ special counsel guidelines.
Rosenstein’s legal cocktail
Those regulations were written in a manner to address concerns that independent prosecutors and counsels wielded too much power with too little oversight. That’s why those Justice officials decided give the attorney general or deputy attorney general — in case of a recusal by the former — the power to name “special counsels” and manage their investigations.
The special counsel guidelines require those outside investigators to “receive, review, and, where appropriate, forward to the Attorney General or an agency head … disclosures of violations of any law, rule, or regulation, or gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety.” In this case, that was Rosenstein and later Attorney General William Barr, who took office earlier this year.
But Rosenstein also made Mueller’s office subject to other guidelines that required him to present a confidential final report to the attorney general explaining why he chose to prosecute certain individuals but not others. That was a direct “reaction to the Starr report, designed precisely to reject Starr’s ‘grandiose vision of the truth-reporting role,’” as legal experts Jack Goldsmith and Maddie McMahon wrote in a Lawfare blog essay. (Rosenstein previously worked for Starr during the Whitewater investigation.)
In fact, the very first words of the Mueller report’s introduction quote the DOJ guideline requiring that his concluding report be submitted directly to the attorney general.
Enter Barr, a longtime believer in the “unitary executive” theory, who congressional Democrats and some legal scholars have said Trump selected because of a 2018 memo he wrote for Rosenstein about the Mueller probe. “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch,” Barr wrote.
Congressional Democrats said their fears about Barr’s views were confirmed during a Thursday press conference ahead of the Mueller report’s release in which Barr used Trump’s verbiage — “no collusion” — five times, despite the special counsel explaining why it for two years shied away from that term because it has no basis in U.S. law.
The nature of the special counsel guidelines and others Rosenstein assigned to Mueller’s charge, Democrats and analysts contend, gave Trump and Barr a three-week lead in shaping public opinion about just what Mueller found and concluded. That cocktail of rules allowed Barr to issue a four-page summary of Mueller’s 448-page report on March 24.
It also allowed Barr to address the country about an hour before a redacted version of the special counsel’s report was made public. And Democrats and analysts say he contradicted Mueller’s findings and even misled the public.
“After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense,” Barr said.
‘Efforts to influence’
But the report tells a much different tale, with Mueller plainly stating in one section that the president very much did attempt — on multiple occasions and through multiple aides — to impair, limit and even shut down the investigation.
Trump’s attempts to do so “were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels,” according to Mueller.
“The President’s efforts to influence the investigation were mostly unsuccessful, but that is largely because the persons who surrounded the President declined to carry out orders or accede to his requests,” the special counsel concluded.
Barr was attorney general under President George H.W. Bush, giving him decadesold roots in the Republican establishment — not the relatively new Trump wing of the party. That means his handling of the Mueller report could be an attempt to protect the Executive Office of the President — and all the powers he believes it possesses under the law — rather than Trump.
Congressional Democrats, however, appear to care little about that distinction.
“Attorney General Barr misrepresented important aspects of the Special Counsel’s findings and provided the White House advance access to the report,” several House Democratic committee chairs wrote in a Thursday statement. Those top Democrats also took umbrage with Barr stating that Mueller’s team mulled other Justice Department guidelines that some legal scholars say prevent the indictment of a sitting president.
“It is now apparent that the Special Counsel expressed no desire to have Barr make that decision himself,” wrote the Democratic chairs. “Instead, as the Special Counsel undoubtedly anticipated, it must fall to Congress to assess the President’s improper, corrupt and immoral conduct in an effort to obstruct the investigation.”
Democratic leaders, including Speaker Nancy Pelosi and Senate Minority Leader Charles E. Schumer, have also slammed Barr for what they consider his handling of the report with a partisan goal of protecting the president rather than the country. And one 2020 Democratic White House hopeful went even further.
“AG Barr must resign,” California Rep. Eric Swalwell, a House Judiciary and Intelligence member, tweeted Thursday. “You can represent the people OR you can represent the President, but you can’t do both.”
AG Barr must resign. You can represent the people OR you can represent the President, but you can’t do both.