Law & the Courts

The Barr Memo Is a Commendable Piece of Lawyering

Special Counsel Robert Mueller departs after briefing members of the Senate on his investigation into potential collusion between Russia and the Trump campaign in Washington, D.C., June 21, 2017. (Joshua Roberts/Reuters)
Trump’s attorney-general nominee would help Mueller conclude his work within DOJ guidelines.

It is exactly what we need and should want in an attorney general of the United States: the ability to reason through complex legal questions in a rigorously academic way. Not to bloviate from the cheap seats, but to think these issues through the way a properly functioning Justice Department does: considering them against jurisprudence, statutes, rules, regulations, and Office of Legal Counsel (OLC) opinions, with a healthy respect for facts that we do not know or about which we could be wrong — facts that could alter the analysis.

That is precisely what Bill Barr did in June, when he penned an unsolicited memorandum to top Justice Department officials on a matter of immense national significance: the obstruction aspect of Special Counsel Robert Mueller’s investigation of President Trump.

[UPDATE: The New York Times has published the memo here.]

Barr, whom President Trump has nominated to be the next attorney general, was not prejudging the facts. He was addressing the law and Justice Department policy. With great persuasive force, the 19-page memo posits two contentions. First, based on what is publicly known, the special counsel’s theory of obstruction is legally flawed. Second, if a Justice Department investigation is going to be used to take down a democratically elected president, the social cohesion of our body politic demands that it be over a clear, very serious crime, not a novel and aggressive theory of prosecution.

Readers of these columns will not be surprised to learn that I agree emphatically with the first point. As for the second point, I can’t fathom a meritorious disagreement with it.

But that is beside the point. What matters is that it was entirely proper for Barr to weigh in on these questions in the thoughtful manner he chose. As a former attorney general, he directed his views to Rod Rosenstein and Steve Engel, respectively the deputy attorney general and the head of the OLC, the lawyers’ lawyers at the Justice Department. Barr was not only attorney general in the Bush 41 administration; he also served in the weighty positions that Rosenstein and Engel now occupy. He is intimately familiar with the difficult decisions they have to make and the Justice Department guidelines and processes that are in place to guide decision-making.

Barr wrote not as an advocate representing someone in the investigation, but as a former high-ranking government official concerned about the institutions of the executive branch, particularly the Justice Department. Special Counsel Mueller’s apparent obstruction theory may have been conceived with the specific facts of President Trump’s situation in mind — Trump’s expression of hope that the FBI would drop any investigation of Michael Flynn, his decision to fire FBI director James Comey. But while a prosecutor may believe his application of a legal principle is narrow, once that application becomes a precedent, only the limits of logic curtail its further, potentially paralyzing extension.

As Barr elaborates, if a president may be prosecuted for obstruction based on carrying out the executive’s constitutional prerogatives — exercises of prosecutorial discretion, giving direction to the course of an investigation, making personnel and management decisions — then every other official in the Justice Department is similarly vulnerable. The apprehension that proper and necessary acts could be construed as improperly motivated, and therefore as actionable obstruction, would profoundly undermine the administration of justice.

The suggestion that there was something untoward about Barr’s submission is absurd. This, no doubt, is why the ethics analysts at the Justice Department concluded that the memo raises no issues of disqualification or recusal in connection with Barr’s nomination to be attorney general. These are the same career lawyers who advised former attorney general Jeff Sessions to recuse himself from the Russia investigation that Mueller is now conducting, much to the president’s chagrin and the applause of his critics.

The difference is patent. While I did not agree with the timing and scope of Sessions’s recusal, the problem was that he was an actor in the transactions under investigation, having both (a) been a key member of the Trump campaign (which is under scrutiny for potential coordination in Russia’s election-meddling) and (b) held meetings with the Russian ambassador.

Barr, by contrast, had no involvement in the transactions Mueller is probing — neither suspected (but unproven) “collusion” between the Trump campaign and the Kremlin nor purported “obstruction.” He is merely a commentator, albeit an influential and extraordinarily careful one, who opined on a legal issue of great public interest. On that score, note that Barr took pains to caveat that many facts of Mueller’s investigation are unknown to him and the rest of the public. Barr’s legal and policy views were based on publicly reported information; if it turns out that Mueller is in possession of new facts that would alter Barr’s assessment, then his assessment would be altered accordingly.

Indeed, Democrats and Trump critics should be encouraged by Barr’s analysis. Put aside that they should be impressed by its high quality. Barr is very far from saying that a president may never be prosecuted for obstruction. Invoking the Nixon and Clinton precedents as support, he asserts that

if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

Barr could not be more clear that enforcing the obstruction laws would not impair the chief executive’s “plenary power over law enforcement” because presidential discretion does not include the commission of “inherently wrongful, subversive acts.” Again, the president is not above the law.

Instead, Barr’s argument is narrow. Mueller appears to be relying on Section 1512 of the federal penal code, an obstruction statute that contains a “catch-all” provision (subsection (c)(2)). This provision targets anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” (Emphasis in Barr’s memo, not in the statute.) Barr’s point is that, to avoid constitutional problems (e.g., vagueness, infringement on Article II authorities), “otherwise” must be read to refer to the types of innately obstructive acts that precede it (in subsection (c)(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.”

That is, Congress’s objective in enacting this obstruction statute was to protect official proceedings from actions that could corruptly compromise the honesty of decision-makers, or render evidence either unavailable or tainted. To “otherwise obstruct, influence, or impede” must involve similar, inherently corrupt action. The statute must not be extended to just any conduct that potentially affects a proceeding, because that would implicate perfectly lawful conduct that executive officials (including the president) routinely engage in — and must be able to engage in if justice is to be administered efficiently.

This is not just sensible, it is elucidated by the legislative history. As Barr recounts, the provision in question was enacted as part of the 2002 Sarbanes-Oxley Act in order to close a loophole in obstruction law exposed by the Enron scandal. The existing provision appeared to cover document destruction only if person A induced person B to do it, not if A carried it out directly. The amendment was designed to reinforce federal obstruction law’s focus on insidious acts that tamper with evidence or witnesses. The president’s powers to, for example, pardon, dismiss and replace subordinates, and guide law enforcement, do not fit that bill, even if they may have substantial impacts on official proceedings.

Of course, as we have noted many times, this interpretation does not place the president above the law; it applies law as it exists to the president. Moreover, Barr is speaking here only of the criminal law. If the president abuses his power — including his pardon power, his power to dismiss executive officers, and his power to guide executive law-enforcement agencies — he may be impeached by Congress. To be impeachable, an abuse of power need not be a violation of the penal code.

Finally, the fact that former attorney general Barr, as a private citizen, rendered opinions in the public debate on an issue of importance does not remotely compromise his capacity to oversee the Justice Department — all of it — with integrity.

In 2007, Senate Democrats demanded of President Bush’s nominee (and later, attorney general) Michael Mukasey that he pronounce waterboarding to be torture — notwithstanding that Mukasey was not “read into” the details of the CIA’s program, which had been carried out under Justice Department guidance. It was apparently irrelevant that this would be tantamount to Mukasey’s rendering an ultimate opinion on a matter under Justice Department investigation, and as to which Mukasey was in the dark about salient facts. By contrast, when President Obama’s nominee, Eric Holder, was only too happy to make the pronouncement Mukasey would not, no one suggested that his premature rendering of an ultimate opinion disqualified him from objectively overseeing the Justice Department’s investigation of interrogation tactics. (A cynic might deduce that the problem is not prejudging issues . . . as long as one prejudges them in a manner that Democrats find agreeable.)

In this regard, Barr’s memo is akin to the middle position. Like Holder, he has rendered an opinion based on the reported facts. But like Mukasey, he concedes he is unaware of the totality of facts known to the investigators, and thus is not in a position to make a final judgment. Within those parameters, Barr’s memo implicitly acknowledged that Mueller is conducting a legitimate Justice Department investigation, and that the probe’s findings on “collusion” — Mueller’s inquiry into which he does not question — would be critical to the question whether there could be a cognizable obstruction offense. And again, Barr has no doubt that any president could be cited for obstruction based on tampering with evidence or witnesses.

The Barr memo is meticulously reasoned and powerfully stated, with a purpose to promote the administration of justice and the Justice Department’s venerable principles of statutory interpretation. Far from threatening the Mueller investigation, it strongly suggests Barr would encourage the special counsel to conform his work to the Justice Department’s conscientious standards — as the attorney general is supposed to do for the work of all federal prosecutors. While Trump foes will shriek (it is their default setting, after all), Americans should be pleased that the president has nominated a lawyer capable of writing such a memo.

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