President Donald Trump’s pick to run the Justice Department wrote a memo in June that argued against redefining obstruction of justice to include lawful actions taken by the president, according to the Wall Street Journal. The 20-page memo by William Barr was dated June 8 and sent to Deputy Attorney General Rod Rosenstein and Steven Engel, head of the Justice Department’s Office of Legal Counsel. Reporters Sadie Gurman and Aruna Viswanatha reviewed the memo, although they do not reveal who leaked it to them.
William Barr, President Trump’s choice for attorney general, sent an unsolicited memo earlier this year to the Justice Department that excoriated special counsel Robert Mueller’s inquiry into potential obstruction of justice by Mr. Trump, saying it is based on a ‘fatally misconceived’ theory that would cause lasting damage to the presidency and the executive branch.
According to the Department of Justice, Barr’s memo said he was writing “as a former official deeply concerned with the institution of the Presidency and the Department of Justice” and acknowledged he was offering his opinion solely based on public information about the probe. The media had been reporting for a year that the Robert Mueller probe was morphing from its alleged purpose of investigating whether President Trump treasonously colluded with Russia to steal the 2016 election into a general investigation into whether Trump obstructed justice.
At the time of Barr’s memo, there were media reports that Mueller was pursuing a theory that firing FBI director James Comey might have obstructed justice. The reports claimed that Mueller wanted to interrogate Trump to determine his state of mind when firing Comey. Barr argued that if the news reports were accurate, such a redefinition of obstruction to include lawful and constitutional actions as personnel decisions would be legally unsound and set an extremely dangerous precedent.
Various media figures and other Democrats called for Barr’s recusal from the moment Trump announced him as his pick, and those calls continued with the news that Barr had written a thoughtful memo that openly acknowledged it was based only on public reports, warning against criminalizing personnel decisions. This after various pundits have repeatedly argued that it’s completely fine to work on the “Russia investigation” and hold extremely negative views about the people involved.
They also just got basic facts wrong:
That’s not true. In fact, it’s so wrong that it’s difficult to believe this reporter read the Journal article or any other sources of information. In his detailed memo, Barr distinguished between investigating the inherently wrong sabotage of a proceeding’s truth-finding function and criminalizing lawful, constitutional actions such as personnel decisions. He argued that redefining the latter as obstruction is legally unsound and would set a disastrous precedent. He specifically noted that presidents may fairly be accused of destroying evidence or other objectively subversive acts and that such an investigation would not harm the president’s ability to perform his duties.
What Barr worried about was taking lawful actions such as the hiring and firing of employees and redefining them as a violation of federal law if a zealous investigator subjectively determined that they were done with the wrong state of mind.
Such an expansion of the definition of obstruction for presidents wouldn’t happen in a vacuum and would have seriously negative effects on the presidency, Justice Department and executive branch, Barr argued. He cited multiple reasons, including that it would limit the president’s Article II powers based on subjective assessments, and could permit a president to be found to have obstructed justice even if there was nothing illegal about his actions.
This is where Barr encouraged Rosenstein and Engel to think through the implications of such a change for the Justice Department itself. If such a path were chosen and such a precedent set, any decision department lawyers made to finish or limit an investigation would be open to an investigation of criminal obstruction, as would failure to open inquiries. The result, he argued, would be further “criminalization” of political disagreements and disputes between branches of government. It would also hurt DOJ’s reputation, Barr wrote:
‘I know you will agree that, if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime—not a debatable one,’ Mr. Barr wrote in the memo. ‘It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.’
According to the Journal, Barr said he hoped his “views may be useful.” Rosenstein, for his part, said Barr’s “memo has had no impact on the investigation.” If it had no impact on the investigation because Mueller isn’t pursuing a legally questionable obstruction case as a means to oust Trump for lawful actions, that’s fine. But if Mueller was pursuing such a route, one hopes Rosenstein would be encouraging Mueller to avoid harming the republic in such a way.
Despite the ongoing calls from opponents of Trump for any of his attorney general picks to recuse themselves for reasons, the Justice Department spokeswoman Kerri Kupec said senior department ethics officials said the memo would not pose a conflict to his appointment:
‘Mr. Barr has stated that, if confirmed, he will make any decisions based on the actual facts and circumstances of any particular matter,’ she added. But it would be too soon for ethics officials to weigh in on specific matters like whether he should step aside from the Russia probe, as he is not yet confirmed and it’s unclear where the investigation will stand if he takes office, a person familiar with the matter said.
Barr served as attorney general under President George H.W. Bush. Other former senior officials have also expressed concern about institutional problems at the Department of Justice and the need to move away from politicized processes.