Following the release of Attorney General William Barr’s summary of the Robert Mueller report, deflated Democrats are trying to put the impeachment of President Trump on the back burner. Nevertheless, House Judiciary Committee Chairman Jerrold Nadler (D-NY) wants to put Barr on the hot seat for declaring the evidence was insufficient to establish Trump committed an obstruction-of-justice offense. Others, like Rachel Maddow, will do the same in the press.
Expect the left to train their fire on a memorandum Barr authored and sent to the Department of Justice in 2018. The memorandum has been mischaracterized by the media with headlines like “Barr authored memo last year ruling out obstruction of justice.” Barr’s critics will argue he was required to recuse himself from considering the obstruction issue for having written the memo. Neither claim holds up under scrutiny.
Barr’s memo does not claim the president cannot obstruct justice. To the contrary, Barr cites presidents Richard Nixon and Bill Clinton as cases where the claim is justified.
Rather, Barr believes the obstruction statute does not extend to charging President Trump for telling then-FBI Director James Comey he hoped Comey could “let go” of the investigation of former National Security Adviser Michael Flynn, or for ultimately firing Comey. Barr’s arguments rest on rules of statutory interpretation and the future effects of the interpretation he believed Mueller was pursuing. (Some criticized Barr for being speculative about Mueller’s plans, which is odd when you consider these incidents are what led to Mueller’s appointment.)
Barr’s analysis focuses on the residual clause of the federal obstruction statute:
(c) Whoever corruptly –
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both (emphasis added).
Barr’s primary argument — supported by precedent, legislative history, and Department of Justice policy — is the word “otherwise” refers to acts like those which came before it — the alteration, destruction, or concealment of evidence.
Other actions, particularly those within the president’s prerogative under Article II of the Constitution, like firing an officer, require a theory outside the scope of the statute (and other federal criminal laws). Barr later notes the contrary interpretation leads to a quagmire, because a president may have a variety of motives for commenting on an investigation, not all of which are corrupt. His main point is much narrower than his critics represent.
Barr also argues that treating facially lawful acts as potential obstruction would impinge on a president’s law enforcement powers, including in cases involving a president. Barr would leave the judgment of a president’s acts in such cases to the people, or to the impeachment process.
Moreover, the broad theory would burden the prosecutorial discretion of all lower executive branch officials conducting criminal, civil, and administrative law enforcement functions. Referring to the case involving former Virginia governor Bob McDonnell (R), Barr notes the legal uncertainties that would be created given the degree to which federal courts have wrestled with the scope of the word “corruptly.”
Elsewhere, Barr expounds on his expansive view of executive power. Barr’s views are well-known in Washington, which is why the suggestion Barr wrote the memo to curry favor with Trump is amusing. One need not subscribe to Barr’s entire worldview to recognize his two main points are strong.
Barr further claims that “[b]ecause the obstruction claim is entirely dependent on first finding collusion, Mueller should not be permitted to interrogate the President about obstruction until has enough evidence to establish collusion,” when obstruction charges are independent from the matter under investigation.
However, in the letter to Congress summarizing Mueller’s report, Barr did not consider Mueller’s inability to establish collusion decisive: “while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.” So Barr did not reflexively rely on his 2018 memo, but modified his thinking as a decision-maker.
On the question of whether Barr should have recused himself from supervising the Mueller probe, it is notable that opinions were split even over at Lawfare, a site where MAGA hats are generally absent. Law professor Barbara McQuade argued that, given Barr’s prior opinions on the matter, he should have committed himself to follow the advice of Justice’s ethics officials. Chuck Rosenberg, a former U.S. attorney, senior FBI official, and chief of the Drug Enforcement Administration, argued against advance deference to ethics advice before knowing the reasons and arguments supporting it.
Former independent counsel Ken Starr, writing in the New York Times, also argued against recusal, observing Barr’s memo was “sounding a clear warning against prosecutorial overreach.”
Starr then twisted the knife a turn: “Indeed, one of Mr. Mueller’s senior prosecutors was a primary architect of a legal theory of obstruction that was unanimously rejected by the Supreme Court, a rebuff delivered only after the prosecution caused the collapse of a major accounting firm, Arthur Andersen. That example does not stand alone. In case after case, a wary – and frequently unanimous – Supreme Court has knocked down legal theories drummed up by well-meaning but overly zealous federal prosecutors.”
It was precisely this type of concern that prompted Barr to write his 2018 memo.
Whether Barr and Mueller — two old friends — clashed over the main legal issue in Barr’s memo is as yet an unanswered question. Barr’s letter to Congress refers to “what the Special Counsel views as ‘difficult issues’ of law and fact concerning whether the President’s actions and intent could be viewed as obstruction.”
Notably, Barr’s letter reveals Deputy Attorney General Rod Rosenstein — once a hero of the left for keeping the Mueller investigation on track — agreed with Barr’s decision. Either Rosenstein was persuaded by Barr’s view of the obstruction statute or otherwise concluded there was insufficient analysis. Thus, even had Barr recused himself, the conclusion would have remained the same.
Of course, a Democratic House could reject those conclusions and impeach Trump for obstruction, or just about anything it wants. But Barr recognized as much in the 2018 memo Democrats attack him for writing. Expect a lot of smoke, without fire.