The Senate confirmation of William Barr to become attorney general should be an easy matter, even in Washington. After all, he previously held the position with distinction.
Unfortunately, the U.S. government may be the only employer where prior experience and prior insights are a liability. The fact that Barr is a brilliant lawyer and previously served as President George H.W. Bush’s attorney general from 1991 to 1993 seems to count for little.
Opponents of President Trump’s nomination of Barr to become attorney general are seizing on a memo Barr sent June 8 to Justice Department officials.
In the memo, Barr expresses his opinion on some legal aspects of Special Counsel Robert Mueller’s investigation of Russia’s interference in the 2016 U.S. presidential election and possible collusion between Russia and the Trump presidential campaign. The president has repeatedly said “there was no collusion.”
Specifically, Barr’s memo discusses allegations that President Trump may have obstructed justice by firing FBI Director James Comey to stop an investigation of Trump-Russia cooperation to help Trump win the presidential election.
Barr’s memo went to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel. The memo identifies what Barr thought was a potentially serious flaw in the use of the most likely federal provision on obstruction of justice that could be used to accuse President Trump of obstructing the Russia probe.
If there was an essay requirement on the job application to become attorney general, Barr’s memo would get him the position. The 19-page single-spaced memo is an extraordinary and insightful analysis of a little-explored part of our criminal code.
Instead, Barr’s willingness to share his views with top Justice Department officials is now being portrayed by opponents of his nomination as somehow disqualifying or a conflict of interest that should prevent him from becoming attorney general again.
“Mr. Barr's memo reveals that he is fatally conflicted from being able to oversee the Special Counsel’s investigation and he should not be nominated to be attorney general,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement. “Mr. Barr believes presidents in general – and more frighteningly, President Trump, who has shown less respect for the rule of law than any president – are above the law.”
Critics are correct about one thing. Everyone should read the memo, first reported by The Wall Street Journal. However, far from being a disqualifying factor, the memo is precisely why Barr should be confirmed.
The memo is dispassionate, detailed and insightful. It shows precisely why Barr is widely viewed as a lawyer’s lawyer. Barr thrives on the intricacies of the law. There is nothing casual in legal analysis for Barr, which is anchored to the express language and authority for a given act.
The memo concerns a problem that some of us raised back in 2017 about obstruction allegations concerning President Trump’s firing of Comey as FBI director.
At the time, there was no relevant formal proceeding or grand jury for Trump to obstruct. Mueller would need to allege that Trump’s firing of Comey was designed to obstruct an anticipated proceeding – a very difficult case to make in the best of cases.
Yet President Trump has (at least so far) not been accused of destroying or tampering with evidence – making a case of obstruction against him virtually unprecedented under the law.
The law against obstruction would have to be stretched as it never has been before to show that the president tried to “obstruct, influence or impede” a legal proceeding that had not even begun at the time.
Some of us have noted that there were ample and independent reasons for firing Comey, who was widely denounced by former and current Justice Department officials. Comey came under fire for violating core policies and protocols of the Justice Department regarding the FBI investigation of the scandal surrounding the emails of Democratic presidential candidate and former Secretary of State Hillary Clinton.
After being fired by President Trump, Comey became the best witness against himself. He admitted to removing FBI memos and having a friend leak the contents to the media. He recently admitted to ignoring Justice Department protocols in sending agents to the office of then-National Security Adviser Michael Flynn without informing either then-Acting Attorney General Sally Yates or then-White House Counsel Don McGahn.
Barr, however, focused on another problem involving allegations of obstruction of justice against President Trump. Mueller wants to use the obstruction provision to demand an interview with Trump to learn the president’s “state of mind” when he fired Comey.
Barr questions the statutory basis for Mueller’s theory that the president may have obstructed justice by firing Comey. Barr warns in his memo that the Mueller theory could establish an “unbounded interpretation” where any action influencing a future proceeding could be treated as a potential crime.
In addition, Barr addresses how the Mueller theory would influence future prosecutions for obstruction of justice against executive branch officials – not just President Trump.
If the Mueller theory of obstruction is upheld, Barr argues, it would allow for interrogations of executive branch officials on their motivations in exercising a broad range of discretionary powers.
Barr’s critics ignore that he does not criticize the Mueller investigation as a whole, and ignore this important statement from Barr early in his memo:
“Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function,” Barr states in the memo. “Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.”
Barr’s memo continues: “Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such ‘bad acts’ involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion – such as his complete authority to start or stop a law enforcement proceeding – does not involve commission of any of these inherently wrongful, subversive acts.”
With the above comments, Barr’s memo advances a strong and compelling argument in favor of charging presidents for conduct in office, including the misuse of official powers to destroy evidence or tamper with witnesses.
To say that the Barr memo gives presidents a blank check to do as they please and supports the view that “presidents in general … are above the law,” as Schumer claimed, is a gross mischaracterization of Barr’s memo.
One can disagree with aspects of Barr’s analysis, as I do. I believe that a court could legitimately uphold a subpoena to compel Trump to testify on obstruction.
However, Barr impressively marshals dozens of court decisions, statutory provisions, and Justice Department Office of Legal Counsel opinions to lay out the problem with Mueller’s interpretation of the law regarding obstruction of justice.
More importantly, the Barr memo does not suggest that Barr would interfere with Mueller’s investigation.
First, if the legal issue of Comey’s firing was raised on the extension of the obstruction provision, it would not be unilaterally answered by Barr but addressed by a wide circle of experts, including Rosenstein, the Office of Legal Counsel and even the Justice Department’s solicitor general.
Just because an attorney general may be skeptical of an interpretation does not mean that the Justice Department will not advance that interpretation, particularly if made by a special counsel.
Mueller, however, will have to make the case that he is making a defensible and reasonable interpretation of the obstruction of justice statute. All prosecutors must make such cases on novel interpretations and show that they are consistent with other positions taken by the Justice Department.
Second, the problems associated with the obstruction theory on Comey’s firing are shared by a wide range of experts. Mueller is unlikely to peg a prosecution of Trump on such an anemic and untested theory.
Finally, on a practical level, there is every indication that the Mueller investigation is wrapping up. Barr might have a role in deciding what to do with the report or reports issued by the special counsel, but it is extremely unlikely that he would have a material impact on Mueller’s obstruction investigation.
Barr is first and foremost an institutionalist. He is the least likely person to shut down the Mueller investigation unilaterally.
What is clear from Barr’s memo is that his primary concern is for the Justice Department, not for President Trump. Barr clearly acknowledges that the president could be charged on a variety of other grounds if supported by evidence.
Barr warns that “in an increasingly partisan environment, these concerns are by no means trivial. For decades, the (Justice) Department has been routinely attacked both for its failure to pursue certain matters and for its decisions to move forward on others.”
In other words, particularly in an age of rage, a crime without limiting principles can easily envelop of the Justice Department and the government as a whole. It is the type of problem that would not concern a partisan, but does concern an attorney general. That is what Barr was and – if there is any sense left in Washington – that is what he will be again in 2019.