Did the Attorney General Commit a Crime by Lying to Congress?
Nancy Pelosi thinks so, but the relevant statutes suggest she is wrong.
Yesterday House Speaker Nancy Pelosi accused Attorney General William Barr of committing a crime by lying to Congress about Robert Mueller's objections to his summary of the special counsel's report. Justice Department spokeswoman Kerri Kupec called that allegation "reckless, irresponsible, and false."
Kupec did not elaborate on her reasoning, probably because the explanation would not reflect well on Barr's candor and honesty. She is nevertheless right to question Pelosi's claim.
"The attorney general of the United States of America was not telling the truth to the Congress of the United States," Pelosi said. "That's a crime."
Not quite. 18 USC 1621 makes it a felony, punishable by up to five years in prison, for someone to lie under oath. He is guilty if he "willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true." But the Supreme Court has held that the perjury statute does not apply to a statement that "is literally true but not responsive to the question asked and arguably misleading by negative implication."
Another possibly relevant law, 18 USC 1001, makes it a felony, also punishable by up to five years in prison, to "knowingly and willfully" make "any materially false, fictitious, or fraudulent statement or representation" in congressional testimony. A statement can be misleading without being knowingly and materially false.
Keeping those qualifications in mind, let's consider the testimony Pelosi thinks makes Barr guilty of a felony. When Barr testified before a House appropriations subcommittee on April 9, Rep. Charlie Crist (D–Fla.) asked him about an April 3 New York Times story that said members of Mueller's team were unhappy with Barr's March 24 summary of their findings:
Crist: Reports have emerged recently, General, that members of the special counsel's team are frustrated, at some level, with the limited information included in your March 24 letter, that it does not adequately or accurately, necessarily, portray the report's findings. Do you know what they're referencing with that?
Barr: No, I don't. I think, I suspect, that they probably wanted, you know, more put out, but in my view, I was not interested in putting out summaries, or trying to summarize, because I think any summary, regardless of who prepares it, not only runs the risk of, you know, being underinclusive or overinclusive, but also, you know, would trigger a lot of discussion and analysis that really should await everything coming out at once.
It has since emerged that Mueller himself, on three occasions in late March (twice in letters and once on the telephone) had told Barr his summary "did not fully capture
the context, nature, and substance of this Office's work and conclusions," resulting in "public confusion about critical aspects of the results of our investigation." When Barr testified before the Senate Judiciary Committee on Wednesday, Sen. Patrick Leahy (D–Vt.) asked him about the apparent inconsistency between those communications and his statement to Crist that he didn't know why Mueller's underlings were "frustrated" by his summary:
Leahy: Why did you say you were not aware of concerns, when weeks before your testimony Mr. Mueller had expressed concerns to you? I mean, that's a fairly simple—
Barr: I answered the question, and the question was relating to unidentified members who were expressing frustration over the accuracy relating to findings. I don't know what that refers to at all. I talked directly to Bob Mueller, not members of his team. And even though I did not know what was being referred to, and Mueller had never told me that the expression of the findings was inaccurate—but I did then volunteer that I thought they were talking about the desire to have more information put out. But it wasn't my purpose to put out more information.
Later in the hearing, Sen. Sheldon Whitehouse (D–R.I.) called Barr's explanation "masterful hairsplitting," which is not necessarily the same thing as a lying. What Barr told Crist was not helpful, candid, or forthcoming, and it created the misleading impression that Barr was "not aware of concerns," as Leahy put it. But Barr never actually said that.
The perjury statute, as interpreted by the Supreme Court, pretty clearly does not apply to Barr's April 9 testimony. Whether 18 USC 1001 applies is a closer call. But if we give Barr the benefit of the doubt, which is what he would get if he were actually prosecuted for lying to Congress, his "masterful hairsplitting" seems like enough to prevent a conviction.