William P. Barr, who has been nominated to become the next attorney general, wrote a memo to Justice Department leaders earlier this year criticizing special counsel Robert S. Mueller III for a “fatally misconceived” legal theory of how President Trump may have obstructed justice.
The memo, written in June and addressed to Deputy Attorney General Rod J. Rosenstein, is likely to raise alarms among Democrats who have sought to protect the Mueller investigation. And it could intensify the partisan fights surrounding Barr when he comes before the Senate Judiciary Committee for confirmation next year.
Even before the memo, Barr was expected to be grilled about his past statements regarding special counsel investigations, controversial decisions President Trump has made and whether he would publicly pledge to protect the Mueller investigation from political interference.
Barr wrote that Mueller’s apparent theory of obstruction “is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.”
Since being named special counsel in May 2017, shortly after Trump fired James B. Comey as FBI director, Mueller has been investigating whether any Trump associates conspired with the Kremlin to interfere in the 2016 election. He has also been investigating whether Trump or his associates attempted to obstruct the FBI’s investigation of those issues.
Barr, who served as the attorney general in the early 1990s under President George H.W. Bush, said in the memo that he is “in the dark about many facts, but I hope my views may be useful.”
The memo argued that a president can be investigated for acts that would directly alter an investigation, such as suborning perjury or destroying evidence. But Barr contended that the department should not investigate the president for acts that are allowed under his legal authority as president but could, in theory, be done for the purpose of blocking an investigation.
Specifically, Barr wrote that because a president has the power to hire and fire an FBI director, Mueller should not investigate the president’s decision to fire 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.”
Days after Comey’s firing, Barr wrote an opinion piece in The Washington Post arguing that the president’s action was justified, but that was before many of the details of Trump’s interactions with the FBI director were known. The June 2018 memo makes clear that even after those details came to light — such as the president asking Comey two months before the firing to drop his investigation into Trump’s former national security adviser Michael Flynn — Barr still considered the president’s actions justified and not criminal.
The memo was made public Wednesday night by the Senate Judiciary Committee and first reported by the Wall Street Journal.
“On their face, the president’s comments to Comey seem unobjectionable,” Barr wrote. The president “expressed the ‘hope’ that Comey could ‘see his way clear’ to let the matter go,” Barr added. “The formulation that Comey ‘see his way clear,’ explicitly leaves the decision with Comey. Most normal subordinates would not have found these comments obstructive.”
Barr ended his memo with a warning that if Mueller’s obstruction theory were to be accepted by the Justice Department as a whole, the implications “are astounding.”
Justice Department lawyers “are always making decisions that invite the allegation that they are improperly concluding or constraining an investigation,” he noted. “Under the theory now being advanced, any claim that an exercise of prosecutorial discretion was improperly motivated could legitimately be presented as a potential criminal obstruction.”
At the end of his memo, Barr warned, “While these controversies have heretofore been waged largely on the field of political combat, Mueller’s sweeping obstruction theory would now open the way for the ‘criminalization’ of these disputes.”
Barr’s assertion is not completely hypothetical. As House Republicans have attacked the Justice Department and the FBI for their handling of both the Trump investigation and the probe in 2016 of Hillary Clinton’s use of a private email server, they have repeatedly suggested that senior law enforcement officials may have obstructed justice by ending the Clinton investigation.