George J. Terwilliger III, a partner at the law firm McGuire Woods, served in the Justice Department for 15 years, including as deputy attorney general and acting attorney general.
It is important to state another person’s argument accurately when critiquing it. Professor Andrew Coan, in his op-ed titled “William Barr’s memo on the Mueller probe is baseless and dangerous,” erroneously described as “the crux” of the Barr memo “that a president cannot obstruct justice when carrying out his normal constitutional responsibilities, such as hiring and firing officials and directing federal law enforcement operations.” If one of Coan’s law students submitted a legal paper with such an obvious flaw, I hope the good professor would send his student back to the library.
Coan’s straw man is not Barr’s argument at all. Instead, what Barr — President Trump’s pick to head the Justice Department — argues carefully is more narrow and tailored to a specific provision of the obstruction statute. Barr’s memo simply states that the president cannot obstruct justice under a specific statute (18 U.S.C. 1512) when exercising his constitutional responsibilities — such as hiring and firing officials and directing federal law enforcement operations — without the additional predicate of committing the type of obstructive act that Section 1512 prohibits, such as evidence destruction, witness tampering or such other obstructive acts that impair the integrity of evidence or the legal process.
As Barr points out, in United States v. Nixon, the president allegedly directed or approved of the payment of hush money to witnesses. Then, Barr writes: “Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function.” Put another way, according to the Barr memo, the exercise of the president’s constitutional powers over law enforcement neither can alone constitute obstruction under Section 1512, nor can it insulate the president from a charge under that section when there is evidence of an obstructive act covered by Section 1512.
Barr and I worked side-by-side — some said joined at the hip — when we served as attorney general and deputy attorney general, respectively, together. His background was deep in the law, having served as assistant attorney general for the Office of Legal Counsel, which has the last word on interpreting the law for the executive branch. My background was deep in federal prosecutions, having been a front-line prosecutor and a U.S. attorney appointed by President Ronald Reagan. Together, we faced many challenging circumstances in which the law, Justice Department enforcement policy and politics could collide.
So-called Passport-gate was such a matter. During the 1992 presidential campaign, there was intense media interest in a rumor (later proved untrue) that Bill Clinton at one time wanted to renounce his citizenship and that there was a letter in his State Department passport file to that effect. An investigation ensued and took aim at some high-level George H.W. Bush administration officials, questioning who may have looked at the file or encouraged others to do so. A referral to the Justice Department of the results of that investigation started a clock running that gave the attorney general limited time to decide whether to ask a special court to appoint an independent counsel. The independent counsel statute itself was set to expire in the middle of December 1992 ; it was on its last legs due to a bipartisan conclusion that independent counsels were a bad idea.
It was obvious that people in the Bush White House and elsewhere would be angry if an independent counsel were requested; many wanted us to step aside and let the statute expire. At the same time, there were questions concerning whether people interviewed in the investigation had been truthful. Career prosecutors recommended requesting that an independent counsel conduct a broad investigation.
Barr, working solely from the facts and the law, rejected the broad investigation proposal but took his chances with political forces by doing the right thing under the law and requesting the appointment of an independent counsel with a more limited mandate. A relatively quick investigation resulted in no one being charged with a crime in connection with the matter.
Barr’s analysis then and in his much-discussed memo are both products of careful lawyering, without fear of political pressures from any side, which is just what our nation needs right now from an attorney general.