“It was always going to be Barr’s show,” one Trump legal adviser said. “Even if we wanted to be a puppeteer, why would we risk it? Emmet was not going to let stupid decisions be made at the end of this game. We were not going to snatch defeat from the jaws of victory.”
On March 22, Rudy Giuliani, Jay Sekulow, and Jane and Martin Raskin were scattered around the country, from New York to Nashville, and scrambled to get back to Washington. They gathered the next day in the oversized conference room in Sekulow’s law offices on Capitol Hill, an 1880s pharmacy that had been converted into office space. The Maryland Avenue building featured a conference room with a massive mural of Washington. There, Sekulow, Giuliani, and the Raskins prepared for what could come. “We felt confident, but until you have it, you don’t have it,” one team member recalled.
All of them agreed there could be no finding that the president had engaged in collusion with the Russians. But they remained concerned about the other half of the probe. They thought it was possible the report might claim that Trump had broken the law and that the president would have been charged with crimes but for the Justice Department’s Office of Legal Counsel policy prohibiting prosecution of the president. The team did not like that scenario, but if Mueller were to accuse Trump of crimes, the president’s team had planned a counter-narrative. “We didn’t know how obstruction would happen,” the team member said. “We thought they might lay out the facts. . . . We just didn’t know how.”
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Inside the special counsel’s office, Mueller and his prosecutors eagerly awaited the debut of their investigative findings and the breaking of a sacred silence the team had maintained for the past two years. Finally, the copious evidence they had combed the globe to gather would be released in some form to the public. But the prosecutors on the team didn’t know how much Barr would ultimately decide to share right away, and they anxiously discussed what he might do.
In preparation for this moment, the two main teams—one working on Russian interference, the other working on obstruction of justice—had written the report with overarching summaries, which they hoped would give Barr something easy to share with the public before releasing the full report. They felt at a bare minimum he would release those.
The 448-page report was a breathtaking catalog of presidential scheming and misconduct. Volume 2 detailed ten events that the special counsel scrutinized for possible obstruction of justice by Trump. It was not just a historical record. It also provided a dense legal analysis of the evidence, the kind of assessment prosecutors would ordinarily make to determine whether to bring criminal charges. Mueller laid bare in granular detail a presidency plagued by paranoia and insecurity, depicting Trump’s inner circle as gripped by fear of the president’s spasms as he frantically pressured his aides to lie to the public and fabricate false records. Some of the episodes had previously been highlighted in news reports, but Mueller’s report was singular for its definitive examination and revelatory details of the events, with the main actors under oath and on the record.
Just as James Quarles had previewed to Barr on March 5, the special counsel decided not to decide whether Trump committed a crime, based on his interpretation of the OLC opinion prohibiting the prosecution of a sitting president. Though it did not state so explicitly, the report suggested that Congress should assume the role of prosecutor. “The conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of office accords with our constitutional system of checks and balances and the principle that no person is above the law,” the report stated.
The report was classic Mueller: brimming with damning facts, but stripped of advocacy or judgment, and devoid of a final conclusion. Many of the deeply investigated moments, retold almost as scenes in a movie, were engrossing. But the analysis of what to make of the president’s conduct was written in overly legalistic prose, complete with double negatives. It was not clear what the facts added up to, nor did it provide a road map for Congress to pursue impeachment proceedings. For instance, the report stated, “If we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment.”
Mueller figured the American people and their elected representatives in Congress would read the report and decide whether and how to act.
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Thanks to Barr’s notification to Congress, the media were on standby for breaking news. Cameras staked out the attorney general outside his home in Virginia and the Justice Department’s Washington headquarters. Barr and Rosenstein set a deadline for themselves of Sunday evening to report back to Congress with Mueller’s principal conclusions, in part because they did not want the financial markets to open on Monday morning with only rumors in the media and the specter of criminal indictment hanging over the president. So they dug in to devour the report, staying up into the wee hours on Saturday morning to read.
On Saturday, March 23, Barr, Rosenstein, and O’Callaghan reconvened at the office to hash out the report. They tried to weigh the evidence in volume 2 and assumed, for the sake of argument, that each of the ten episodes constituted obstruction of justice and first considered each one alone. They found the evidence truly disturbing but felt they couldn’t prove the president had corrupt intent. They asked themselves, could we get a criminal conviction on this evidence and survive an appeal? Their conclusion was unanimous: no.
Their decision made, Barr, Rosenstein, and O’Callaghan had to decide how to announce it to the public. Ordinarily a decision not to prosecute would remain confidential, but this was no ordinary case. The top Justice Department officials considered it an abomination that the Mueller investigation had become so public, but realized that because of the public scrutiny they had to explain in detail what had happened, even though Trump was not being charged with or accused of a crime.
Barr decided to write a second letter to Congress, which would detail the special counsel’s principal conclusions. He and his team scanned the Mueller report looking for sentences that they could quote in the letter that summarized the special counsel’s findings or reflected the bottom line. They found the report to be a garbled mess and struggled to find something worth quoting. At one point, O’Callaghan homed in on this line: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
“If we don’t include that, people are going to criticize us,” O’Callaghan said.
Barr agreed. “You know what, Ed? That’s a good point. Let’s put that in there,” he said.
As they finalized the draft of the letter, O’Callaghan called Aaron Zebley, Mueller’s chief of staff. He told Zebley that Barr would be laying out Mueller’s bottom-line conclusions and asked if he would want to read the draft before it was released. Zebley responded no, telling O’Callaghan that they did not need to see it. Zebley was hoping and assuming that Barr’s letter would quote the summaries the team had spent so much time on. But he didn’t say that to O’Callaghan. Yet again, the Mueller team declined an opportunity to weigh in on how their investigation’s findings would be presented to the public.