University of Chicago law professors Daniel Hemel and Eric Posner have penned an op-ed for the New York Times in which they argue that William P. Barr is disqualified to serve as President Trump’s attorney general. Their rationale is that the advisory memorandum Barr wrote to Justice Department officials this past June, arguing against the validity of Special Counsel Robert Mueller’s obstruction theory, raises questions about his objectivity and fitness.
Coming from such estimable scholars, the Hemel-Posner column is surprisingly vapid. In fact, it is so unconvincing, I can only conclude that it is the start of a two-part strategy: Set the table by staking out an aggressive but untenable position that Barr — an eminently qualified former attorney general — is not suitable to be AG; then Democrats can appear oh so reasonable in ultimately arguing that Barr must at least recuse himself from oversight of the Mueller investigation. The latter would be a meritless contention, though one we are certain to hear.
Hemel and Posner concede that Barr explicitly disclaimed knowledge about many of the facts of Mueller’s investigation. Moreover, far from attacking the legitimacy of Mueller’s overall investigation, or claiming that a prosecutor may not validly investigate the president for obstruction, Barr asserts that a president may indeed be cited for obstruction by “sabotaging a proceeding’s truth-seeking function.”
Barr’s quarrel, the professors correctly state, is with what press reports indicate is an expansive construction of Section 1512(c) of the federal penal code. As I explained in a National Review column earlier this week, Barr contends that application of the obstruction statute is limited to innately wrongful acts of evidence and witness tampering; it cannot be stretched to cover prerogatives of the presidency (e.g., issuing pardons, dismissing subordinate officials, exercising prosecutorial discretion by weighing in on the merits of an investigation) that a prosecutor believes may have been improperly motivated. Otherwise, not only would the chief executive potentially be divested of his constitutional authority; the administration of justice would be damaged because this theory would apply to all executive officials — including, for example, prosecutors making strategic decisions in litigation, or making personnel and management decisions.
Office of Legal Counsel’s ‘Clear Statement’ Rule
In advancing his arguments, Barr draws on longstanding Justice Department guidance on statutory interpretation, including the Office of Legal Counsel’s “clear statement” rule — the principle that statutes that do not expressly apply to the president must be construed as not applying to the president if doing so would conflict with the president’s constitutional prerogatives.
Professors Hemel and Posner counter that this would mean a president who sold a cabinet post to the highest bidder could not be prosecuted for bribery because the bribery statute does not mention the president. This is a specious contention.
The bribery statute (Section 201) clearly does not apply to the president. Unlike most criminal laws, which generally apply to any person, Congress went to great pains to define the term “public official” for purposes of prosecuting bribery. Lawmakers listed members of Congress, delegates, commissioners, officers, and employees of the United States. The decision not to include the president, then, was a conscious legislative choice, not an oversight. It does not call on us to resolve ambiguity by bringing the clear-statement rule to bear. (The president is not an “officer”; in constitutional jurisprudence, he is the chief executive responsible for appointing officers. Nor is the president an “employee”; in federal law, this term mainly applies to members of the civil service. If Congress had wanted to include the president and vice president in the bribery statute, it would have used those terms.)
Obviously, a president who took bribes would quickly be impeached, the Constitution having explicitly made bribery a ground for impeachment and removal (art. II, sec. 4). That aside, Barr is not claiming that it is a good or bad thing that laws not naming the president do not apply to the president; he is simply explaining that the Office of Legal Counsel (which Barr headed for a time during the Bush 41 administration) hews to this rule of construction. Hemel and Posner do not claim that Barr is inaccurately stating the Justice Department’s well-established position, which has long protected the executive branch from legislative encroachment.
‘Facially Lawful’ Acts
The professors also mine from its context Barr’s argument that obstruction does not apply to “facially lawful” acts of the president. They counter with a factitious example: Although “there is no law against tearing up pieces of paper,” federal obstruction statutes nevertheless reach this conduct by proscribing the destruction of documents relevant to an investigation.
Of course, Barr was not talking about any facially lawful acts; he was addressing facially lawful acts that are constitutional prerogatives of the presidency. Barr could not have been more clear that a president who destroys documents commits the crime of obstruction. But, the professors’ chagrin notwithstanding, this does not mean that a president who fires the FBI director — a facially lawful act and a constitutional prerogative of the presidency — commits the crime of obstruction. (Again, the inability of a prosecutor to bring obstruction charges would not prevent Congress from impeaching a president who abused his power over subordinates in order to impede investigations — as Congress was poised to when Richard Nixon resigned to avoid impeachment.)
Obstruction without Collusion?
Next, Hemel and Posner accuse Barr of claiming that a president could not be guilty of impeding an investigation “corruptly” (the state of mind that must be proved in an obstruction case) unless the president were proved to be guilty of an underlying crime that the obstructive act was intended to conceal. This is “nonsense,” the professors exclaim, because “obstruction is a crime in and of itself” regardless of whether an underlying crime is proved.
This distorts Barr’s argument. He was not denying the unremarkable fact that, as a matter of law, an obstruction charge is not dependent on proof of an underlying crime. Barr instead was making a factual argument: “In the particular circumstances” of Mueller’s case, obstruction could not be established unless President Trump “were actually guilty of illegal collusion.” This is because Trump had constitutionally permissible reasons to fire the FBI director and weigh in on the merits of further investigation of fired national security advisor Michael Flynn. His contention is that, on the peculiar facts of the case, unless it were proved that Trump illegally conspired with Russia, one would have to assume that his exercise of constitutional prerogatives was properly motivated, not corrupt.
This, by the way, mirrors the reasoning the Justice Department’s inspector general applied in the investigation of FBI misconduct during the Clinton-emails investigation. As I’ve previously noted, although the IG found disturbing evidence of bias, he could not conclude that bias drove any particular investigative decision because, in each instance, the agents also had potentially proper motives for their official actions.
The Starr Comparison
Hemel and Posner next draw a frivolous comparison between Barr’s memo and the obloquy hurled at Clinton independent counsel Kenneth Starr, to which Barr rightly took exception at the time.
As elucidated by the 1998 statement he issued (in conjunction with former attorneys general Griffin Bell, Ed Meese, and Richard Thornburgh), Barr’s objection was to the vicious, ceaseless public attacks on the legitimacy of Judge Starr’s investigation, his staff, and his character. In stark contrast, Barr does not question the legitimacy of Special Counsel Mueller’s investigation or even the proposition that a president may be guilty of obstruction. His memo posits a narrow legal objection to one aspect of Mueller’s apparent obstruction theory. Furthermore, Barr provided his advice privately to the deputy attorney general and chief of Justice’s Office of Legal Counsel. Deputy Attorney General Rod Rosenstein says the memo was not shared with the special counsel’s office and has had “no impact” on the investigation.
Finally, adopting a hysterical tone, Hemel and Posner write:
Remember when President Trump demanded “loyalty” from [former FBI director James] Comey? If Mr. Barr is confirmed as attorney general, it looks as though the president will get what he wanted. “He alone is the Executive branch,” Mr. Barr wrote of the president. The attorney general and the Justice Department lawyers “who exercise prosecutorial discretion on his behalf” are “merely ‘his hand.’” These bizarre statements are not those of a lawyer but of a courtier.
Actually, far from “bizarre statements,” Barr’s assertions reflect the views of the late, great Justice Antonin Scalia in his much-admired dissent in Morrison v. Olson (1988). The Constitution says, “The executive Power shall be vested in a President of the United States.” As Justice Scalia memorably explained, “this does not mean some of the executive power, but all of the executive power.” Such estimable scholars as Hemel and Posner must know that Barr — far from sending a signal about “loyalty,” which former director Comey alleges President Trump demanded of him — was merely articulating the “unitary executive” theory. That theory, rooted in constitutional law, holds that Article II vests all executive power in a single official, the president; therefore, subordinates appointed to wield executive power, including government lawyers exercising prosecutorial discretion, do so as delegates of the chief executive. That, indeed, is why all executive officers serve at the pleasure of the president, who does not need a reason to dismiss them.
The professors and the Times may not like the unitary executive — most progressives do not, at least when the White House is not occupied by a Democrat. But it is beneath Hemel and Posner to pretend that the articulation of a venerable legal theory, advanced by a lawyer who is widely acclaimed to be exceptional and with whom the president was not acquainted until recently, is the flattery of a “courtier.”
Bill Barr remains an extraordinarily qualified nominee. The sound legal advice in his memo is appropriately qualified by an acknowledgment that he is not aware of all the facts known to Special Counsel Mueller, which could alter his analysis. Professors Hemel and Posner haven’t laid a glove on him.