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Barr explains his view on Trump and obstruction, but does it hold water?

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Image: Attorney General Barr Testifies At Senate Hearing On Russian Interfe
Senate Judiciary Committee chairman Sen. Lindsey Graham (R-SC) and ranking member Sen. Dianne Feinstein (D-CA) listen to U.S. Attorney General William Barr testify before the Senate Judiciary Committee May 1, 2019 in Washington, DC. -
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WASHINGTON — Attorney General William Barr stopped far short on Tuesday of saying there was no evidence that President Donald Trump obstructed Special Counsel Robert Mueller's investigation.

In testimony before the Senate Judiciary Committee, Barr delivered the most detailed explanation to date as to why he concluded that certain actions by Trump — specifically, the president's efforts to remove Mueller from office — simply weren't enough to make him certain that the Justice Department could, theoretically, win a criminal conviction is court.

Rather than a made-for-TV moment, the nation's top lawyer unwound his reasoning for seven minutes in a hallmark style so sedate and technical that it could be hard to zero in on. But, putting aside Barr's support of a Justice Department policy precluding the prosecution of a sitting president, the attorney general argued that the episode with White House Counsel Don McGahn wasn't an open-and-shut case.

According to the Mueller report, which identified 10 instances in which the special counsel identified acts that could be considered potential obstruction of justice, Trump asked McGahn to raise alleged Mueller conflicts of interest with Deputy Attorney General Rod Rosenstein. McGahn took the instruction to mean that Trump wanted Mueller fired. When news of that broke, many months later, Trump sought to have McGahn deny the story and write a letter "for our records" changing his story.

"We felt with that episode the government would not be able to establish obstruction," Barr said, under questioning from California Sen. Dianne Feinstein, the panel's top Democrat.

That put him in a legal and political gray area: Authoritative in his conclusion that the president shouldn't be prosecuted but far from saying Trump's hands were clean.

Trump's version of the story — a request to have Rosenstein look at potential conflicts of interest that would possibly result in the removal of Mueller rather than firing the special counsel — "suggests you're going to have another special counsel" rather than "ending the investigation," Barr testified.

And, he added, "there is evidence that the president truly felt that the (New York) Times article was inaccurate and he wanted McGahn to correct it."

In other words, viewed completely through Trump's lens, there is a way in which the president legally could have not only fired Mueller but then asked McGahn to create a record that was inconsistent with McGahn's memory that has nothing to do with the concept that Trump can't be prosecuted for anything.

Kim Wehle, a law professor at the University of Baltimore who worked on Independent Counsel Kenneth Starr's investigation of President Bill Clinton, said Barr's theory is "not legally indefensible" even if it's "threading an incredibly fine-tuned needle."

"The fact that this president has the power to stop an investigation lawfully makes him a unicorn constitutionally for purposes of obstruction of justice," Wehle said in a telephone interview. "That is exactly what Barr is trying to say."

All in all, Barr said, Trump could be seen as acting with pure intent.

"We believe 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," he said.

Mueller took a somewhat different view of the meaning of some of Trump's actions.

"The president's efforts to have McGahn write a letter 'for our records' approximately 10 days after the stories had come out — well past the typical time to issue a correction for a news story — indicates the president was not focused solely on a press strategy, but instead likely contemplated the ongoing investigation and any proceedings arising from it," Mueller wrote.

But Barr's frame — a determination that he would not be able to "establish obstruction" in a jury trial — was a strong implicit acknowledgment of the evidence Mueller presented that could be viewed as obstruction.

"The government has to prove things beyond a reasonable doubt," he said in response to questions from Sen. Amy Klobuchar, D-Minn., about the president's actions and intent. "As the report shows, there's ample evidence on the other side of the ledger that would prevent the government from establishing that."

The side of the ledger he didn't want to talk about, but which was implicit in his testimony, was the one that included all of the evidence Mueller reported as potential obstruction.