William Barr, we now know, wrote a 20-page memo to the Justice Department postulating that President Trump could not be found to have obstructed justice merely by exercising his Article II powers.
Specifically, Barr wrote that because a president has the power to hire and fire an FBI director, [Robert S.] Mueller [III] should not investigate the president’s decision to fire [James B.] Comey. He wrote that doing so would ultimately limit the chief executive’s authority over government agencies, and the authority of senior Justice Department officials who might later decide to shut down investigations or not approve the filing of charges.
“Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction,” Barr wrote. “Apart from whether Mueller [has] a strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived.”
The memo’s logic is faulty. If Trump received a bribe in exchange for a pardon, he certainly would be guilty of a crime, regardless of whether he has the power to pardon individuals. If as president, as Richard Nixon did, he ordered the CIA to squelch an FBI investigation, he is guilty of obstruction even though he has the power to direct executive branch agencies. The distinction Barr makes between obstruction in the context of a cover-up and obstruction in furtherance of some other crime is without constitutional or rational foundation. If he can obstruct justice by exercising Article II power, he can in both situations; if not, he cannot.
Former acting solicitor general Neal Katyal doesn’t think much of Barr’s lawyering:
Katyal tells me that Barr’s memo raises troubling questions for both presidents and governors. “If the exercise of a power immunizes them to criminal liability, it would put the President and Governors above the law.”
What is telling, however, is that Deputy Attorney General Rod J. Rosenstein makes clear Barr was operating without understanding what Mueller was investigating or what theory he was pursuing. (“Obviously, our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have,” Rosenstein said. “I didn’t share any confidential information with Mr. Barr. He never requested that we provide any non-public information to him, and that memo had no impact on our investigation.”)
So why would Barr write such a memo, if he was uninformed as to the facts and uncertain about Mueller’s legal theory? Ben Wittes at Lawfare blog writes:
Indeed, it is not an exaggeration to say that Barr’s entire memo is predicated on two broad assumptions: first, that he knows Mueller’s legal theory, and second, that he understands the fact pattern Mueller is investigating. “It appears Mueller’s team is investigating a possible case of ‘obstruction’ by the President predicated substantially on his expression of hope that the Comey [sic] could eventually ‘let ... go’ of its investigation of [Michael] Flynn and his action in firing Comey,” Barr writes in his second paragraph.
Neither assumption is, in our judgment, warranted. Unlike Barr, we don’t purport to know what Mueller’s obstruction theory is. It’s a subject about which one of us has been puzzling over a long period of time and in a number of articles. We also don’t purport to know what fact patterns Mueller he is focusing on. But here’s a limb onto which we are prepared to venture: the reality is more complicated than the facts Barr has “assumed” for purposes of predicating nearly 20 pages of legal analysis. In fact, it’s a lot more complicated.
In other words, Barr set up the mother of all strawmen. If you wanted to preen and audition for the AG job, you’d write a memo based on a narrow set of hypothetical facts that bore no resemblance to the facts at issue and could be distinguished from the actual fact pattern. If the investigation was not premised on Comey’s firing alone but on an entire fact pattern, including witness-tampering and lying to investigators, hypothetically, Mueller wouldn’t be relying on the facts and theory Barr set out. Barr could grandstand and audition for the job, without actually tying his hands.
Constitutional scholar Larry Tribe observes that “the memo appears to concede that a president can indeed be guilty of obstructing justice if he does things more outside his wheelhouse than fire his FBI Director — by encouraging people to lie, or tampering with witnesses, or doing any of several things it now appears Mueller may well have evidence Trump has done.”
It may not speak well of Barr’s judgment to have written such a speculative memo and implicitly encouraged a president to interfere with an ongoing investigation, but he certainly has the chance to repudiate it or distinguish it from the fact pattern at issue during his confirmation hearing, as he must, unless he wants to recuse himself. The key questions to ask Barr include:
- If a president takes a bribe to pardon someone, is that legal?
- If a president offers a bribe, a pardon, to shut up a witness, is that legal?
- If a president tells witnesses not to cooperate with an investigation, is that legal?
- If the president drafts a misleading statement to conceal the purpose of a meeting under investigation, is that legal?
The Senate must grill Barr with great care. If satisfied that Barr thinks Trump could obstruct justice under some set of facts at play here, Barr may still be capable of overseeing the probe. However, he might want to take the advice of the ethics officers whom acting attorney general Matthew G. Whitaker disregarded and recuse himself to prevent questions about his character and judgment.