When Sen. Lindsey O. Graham (R-S.C.) asked President Trump’s nominee for attorney general, William P. Barr, earlier this week whether it would be a crime if “the president tried to coach somebody not to testify, or testify falsely,” Barr was unequivocal: “Yes,” the nominee told the Senate Judiciary Committee. “Under an obstruction statute, yes.”
Now that an explosive story published Thursday by BuzzFeed News alleges that Trump did just that, by ordering Michael Cohen, his former attorney, to lie to Congress, Barr’s answer presents the White House with a new quandary — the president’s own choice for the nation’s top law enforcement official has described such conduct as “classic” obstruction of justice. Barr said the same when pressed by Sen. Amy Klobuchar (D-Minn.), as well as in his own written statements. He has affirmed his view at least three times, both in a once-private memo and in sworn testimony.
In response to the BuzzFeed story, House Judiciary Committee Chairman Jerry Nadler (D-N.Y.) tweeted Friday morning that the committee would investigate. “We know that the President has engaged in a long pattern of obstruction. Directing a subordinate to lie to Congress is a federal crime. The @HouseJudiciary Committee’s job is to get to the bottom of it, and we will do that work,” he wrote.
The White House’s difficulty isn’t that Barr spoke out of turn or betrayed an unconventional opinion in line with Democratic talking-points, said David Alan Sklansky, a Stanford law professor. The problem for Trump, who pushed out Jeff Sessions as attorney general after seething that he had failed to protect him from the inquiry led by special counsel Robert S. Mueller III, is rather that a view more favorable to the president would have been indefensible, the criminal law scholar said.
The nominee’s clearly stated judgment "limits his ability to take a particular position in defense of the president, but that position would have been an untenable one anyway,” Sklansky said in an interview with The Washington Post. “It would have been more awkward to defend the nomination of an attorney general who didn’t think this is obstruction of justice. It’s not a controversial position.”
Barr, who was previously attorney general under President George H.W. Bush, left little doubt about his views in an unsolicited memo addressed to the Justice Department last year. Made public by the Wall Street Journal in December, the 20-page document criticized Mueller for apparently focusing on actions that Barr claimed did not constitute obstruction, such as firing government employees.
But Barr was clear about what he called criminal obstruction in the “classic sense” — “sabotaging a proceeding’s truth-finding function." In his June 2018 memo, the attorney and member of the Republican Party laid out acts amounting to obstruction: “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.”
Citing two unnamed federal law enforcement officials, BuzzFeed reported that Trump told Cohen to mislead Congress about business dealings in Moscow in the run-up to the 2016 election. In November, the once-loyal fixer for Trump pleaded guilty to lying to Congress about the project. In December, he was sentenced to three years in prison for what a federal judge called a “veritable smorgasbord of criminal conduct.” He is scheduled to testify before the House Oversight Committee next month.
The act of suborning perjury, or directing someone to commit perjury, would constitute obstruction of justice, Sklansky said, because it clearly involves corrupt intent, the element that Barr and others believe is missing from Trump’s decision to terminate government officials, such as his firing of former FBI director James B. Comey. “It’s hard to see how you can ask somebody to lie to Congress about a material fact without having a corrupt intent," the Stanford professor said.
The White House didn’t immediately return a request for comment Thursday. Rudolph W. Giuliani, Trump’s attorney, sought to cast doubt on the story by saying, "If you believe Cohen I can get you a great deal on the Brooklyn Bridge.”
When Barr came before the Senate Judiciary Committee this week, Democrats seized on his memo to question his capacity to oversee the special counsel’s investigation fairly. They argued that his expansive vision of presidential power made him too partial to the White House’s defiant stance.
Ironically, the very same document articulating views that some feared had endeared Barr to Trump could now end up creating distance between the president and his attorney general, should he be confirmed.
That became clear in two brief exchanges that the nominee had with lawmakers of opposite parties. Clips of the testimony resurfaced because they underscore the gravity of the revelations in the BuzzFeed story, which congressional Democrats said was cause for fresh investigation. Some even said it was possibly grounds for impeachment.
“So if there was some reason to believe that the president tried to coach somebody not to testify or testify falsely, that could be obstruction of justice,” said Graham, the chairman of the Judiciary Committee.
“Yes,” Barr answered. “Under an obstruction statute, yes.”
“So if there’s some evidence that the president tried to conceal evidence, that would be obstruction of justice potentially, right?” continued Graham, who has defended Mueller even as he has accused parts of the intelligence community for mishandling investigations arising from the 2016 election.
“Right,” Barr affirmed.
Klobuchar, a former prosecutor, took up a similar line of questioning.
Referring to Barr’s memo, she asked, “You wrote on page one that a president persuading a person to commit perjury would be obstruction. Is that right?”
“Yes,” the nominee said. “Well, you know, any person who persuades another.”
“You also said that a president — or any person — convincing a witness to change testimony would be obstruction,” Klobuchar said. “Is that right?”
“Yes,” he replied.
“And on page two, you said that a president deliberately impairing the integrity or availability of evidence would be obstruction,” she continued. “Is that correct?”
“Yes,” Barr said.
This dialogue hardly seemed decisive at the time because Barr’s professed view reflects mainstream legal thinking, which makes the actions described in the BuzzFeed story all the more striking, Sklansky said.
“If the president directed his lawyer to lie to Congress, that’s very serious criminal behavior, and I think it’s the kind of behavior that many, many people will find troubling," he said. "Any fair-minded person should find it troubling if it’s true.”
Neal Katyal, a former acting solicitor general of the United States during the Obama administration, reached a similar conclusion, telling CNN’s Don Lemon, “It is a federal crime to order someone to lie in their testimony to Congress. That’s what the BuzzFeed article says, and it says that Mueller has corroborated that with email, text messages, electronic information and the like.”
“It’s a blockbuster,” Katyal concluded. On Twitter, he also suggested that the actions reported by BuzzFeed paralleled the impeachment charges against President Richard M. Nixon.