The night before Attorney General Bill Barr’s appearance before the Senate Judiciary Committee, a letter from Robert Mueller informing Barr that he objected to his four-page summary of the special counsel investigation leaked to the Washington Post. “There is now public confusion about critical aspects of the results of our investigation,” Mueller reportedly wrote to Barr on March 27. “This threatens to undermine a central purpose for which the Department appointed the Special Counsel: to assure full public confidence in the outcome of the investigations.”
The timely leak drew new attention to a moment from Barr’s previous testimony before the Senate Appropriations Committee. During an April 10 hearing, Maryland senator Chris Van Hollen asked Barr if Mueller supported his four-page summary. Barr said, “I don’t know whether Bob Mueller supported my conclusion.” As House Judiciary Chair Jerrold Nadler and Senator Van Hollen have stated, this suggests an attempt at misdirection, as Barr received the letter two weeks prior to his Senate testimony. Some eager commenters began to claim that the U.S. Attorney General’s April 10 comments could fall under the definition of perjury.
But as Lawfare executive editor Susan Hennessey wrote, the legal purview of perjury is incredibly narrow, and Barr had most likely worded his response in a way that would avoid such a charge.
Regarding a past instance in which a Trump administration figure was accused of perjury, Lawfare contributor Helen Klein Murillo wrote:
Perjury is extremely difficult to prove. A prosecutor has to show not only that there was a material misstatement of fact, but also that it was done so willfully — that the person knew it was false when they said it. In Bronston v. United States, a unanimous Supreme Court held that a literally true but unresponsive answer could not form the basis of a perjury conviction even if the individual intended to mislead.
Legally, Barr is almost certainly in the clear on a perjury charge: It appears that his “I don’t know” response to Senator Van Hollen could fall under the definition of an unresponsive answer. But politically, the fallout for what appears to be an intentionally misleading statement is already intensifying the calls for Barr’s resignation or impeachment. Certainly, the release of the letter won’t make his testimony in front of the Senate Judiciary Committee on Wednesday any easier.