The Barr Memo Is a Commendable Piece of Lawyering

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.

.. 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.

.. Barr was not only attorney general in the Bush 41 administration; he also served in the weighty positions that Rosenstein and Engel now occupy.

.. 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.

.. 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.

.. 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’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.

.. 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.

.. 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.