Thread by @JoshMBlackman

1/ Barr's prepared testimony to the Senate Judiciary Committee offers a few previews of how he views his decision. First, he stresses in several places that "The Special Counsel regulations provide for the report to remain confidential."

2/ Stressing that the report could have remained "confidential" provides a pushback to Mueller's letter, which expressed concern how Congress, the public, and the media would view his investigation. washingtonpost.com/world/national…

3/ Second, Barr cites AG Robert Jackson as proof why "The appointment of a Special Counsel calls for particular care." Specifically, he is "charged with investigating particular potential crimes, not all potential crimes wherever they may be found."

4/ Who else cited this passage from Jackson? Justice Scalia's dissent in Morrison v. Olson. scholar.google.com/scholar_case?c…

5/ I discussed this analysis in my @lawfareblog post earlier today, and made a very similar point: lawfareblog.com/special-counse…

6/ Barr cites Jackson, and by extension, Scalia's Morrison dissent. Here, the AG reiterates his original objections to the special counsel's appointment, and by extension, his investigation.

7/ Third, Barr suggests that there is an additional reason why a prosecution was not warranted: "whether particular legal theories would extend to the facts of the case."

8/ AG stressed that he did not make his decision based on Mueller's legal theories. But this sentence suggests that Barr did make his decision based on Mueller's legal theories as applied "to the facts of the case."

9/ Barr added that he reviewed the "legal theories outlined in the report" in consultation with OLC. But he accepted Mueller's "legal framework." (Is that different than theory?) Again, it is not clear how those legal theories shaped his decision.

10/ I suspect OLC opined that Mueller's failure to apply the clear statement rule, and his open-ended discussion of "corrupt" were insufficient to support a prosecution.

11/ For further reading, see my three-part series on @lawfareblog
Part I: lawfareblog.com/special-counse…
Part II: lawfareblog.com/special-counse…
Part III: lawfareblog.com/special-counse…