Thursday, December 20, 2018
Bill Barr, President Trump's nominee to be AG, earlier this year issued a sweeping criticism of Robert Mueller's investigation into obstruction of justice by the President that further reveals his views on executive authority. (We previously posted on Barr's views on the unitary executive here.) The memo, penned on June 8, 2018, was directed to Deputy AG Rosenstein and Assistance AG Steve Engel, and addresses Mueller's investigation into obstruction based on President Trump's statements to James Comey related to Michael Flynn (that he hoped Comey could eventually "let . . . go" of the Flynn investigation) and his firing of Comey.
The memo--including Barr's constitutional claims, and his prejudgment of Mueller's investigation--will undoubtedly become an issue during his confirmation hearings.
This may become an issue, too: Barr wrote a detailed, 19-page legal analysis on a difficult and hotly contested legal question, even as he acknowledged that he was "in the dark about many facts." (Indeed, Barr doesn't seem to have any particular insider knowledge of Mueller's investigation at all, yet he builds his analysis on remarkably detailed assumptions or guesses about Mueller's legal positions and arguments.) Congress might take note that other attorneys, when "in the dark about many facts," might pause and reflect a little before issuing a 19-page memo with detailed legal analysis--and that Barr's willingness to do so might reflect on his judgment and professionalism.
In short, Barr argues that Mueller is playing loose with the federal law that criminalizes obstruction, and that as a matter of constitutional law the President can't be convicted of obstruction for acting within his authority just because he had a bad motive. In other words, according to Barr the President has inherent Article II authority to do what he did (make the statements to Comey, and fire Comey), and those acts can't become illegal just because he did it with a bad motive.
Barr acknowledges that there are some acts a president might take that would constitute obstruction--for example, by "sabotaging a proceeding's truth-finding function" by "knowingly destroy[ing] or alter[ing] evidence, suborn[ing] perjury," etc.--stopping just short of a Nixonian conclusion that "when the president does it, that means that it is not illegal." But under his theory, there seems to be no way to prevent a president from interfering with or entirely halting an investigation or prosecution into any of these illegalities (aside from whether a sitting president can be prosecuted).
Here's the thumbnail version of the constitutional argument:
Second, Mueller's premise that, whenever an investigation touches on the President's own conduct, it is inherently "corrupt" . . . for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President's supervisory authority. Moreover, such a limitation cannot be reconciled with the Department's longstanding position that the "conflict of interest" laws do not, and cannot, apply to the President, since to apply them would impermissibly "disempower" the President from supervising a class of cases that the Constitution grants him the authority to supervise.
Third, defining facially-lawful exercises of Executive discretion as potential crimes, based solely on subjective motive, would violate Article II of the Constitution by impermissibly burdening the exercise of core discretionary powers within the Executive branch.
The details begin on page 9 of the memo. (Earlier portions of the memo argue that Mueller is misreading and misapplying the obstruction statute.)