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 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.

.. 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.”