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.”

Trump Taps William Barr to Be Next Attorney General

Nominee served in the post for two years during the first Bush administration

Mr. Barr spent two years as attorney general under former Republican President George H.W. Bush. One of the people who served under Mr. Barr during that time was Pat Cipollone, whom Mr. Trump named White House counsel in October.

Mr. Barr has also called for “more balance” among the prosecutors working for Mr. Mueller, noting that some of them have made political contributions to Democrats. Mr. Mueller is a registered Republican. Mr. Barr also publicly supported Mr. Trump’s call last year for the Justice Department to investigate 2016 Democratic presidential candidate Hillary Clinton, saying there was “nothing inherently wrong” with such a call. Presidents typically avoid public calls for investigations to avoid the appearance of interfering with matters of justice.
.. As Mr. Trump mulled his choices for the job, some of the president’s advisers opposed Mr. Barr, saying he was the sort of establishment figure the president often derides on the campaign trail.
..  Mr. Whitaker also had told CNN that if Mr. Sessions were succeeded by an acting attorney general, he could imagine a scenario in which that person would reduce Mr. Mueller’s budget “so low that his investigations grinds to almost a halt.”

Trump Is Mulling Candidates Who Could Succeed Jeff Sessions

Potential candidates for attorney general include Alex Azar, Steven Bradbury and Bill Barr

Mr. Sessions isn’t currently planning to leave, but privately has said that he anticipates he may be asked to resign, according to people familiar with the matter. The attorney general, who was the first senator to endorse Mr. Trump during the presidential campaign, has told people the request may come on the president’s Twitter feed.

“This is actually the dumbest thing I’ve been asked to comment on in a while,” said Justice Department spokeswoman Sarah Flores.

..Replacing Mr. Sessions would present legal and political quandaries for the president.

.. Mr. Trump must find a successor who could win Senate confirmation, a job that senators say is harder given the president’s public suggestions that he wants a political ally as attorney general.

.. Many GOP senators are advocating for Sen. Lindsey Graham (R., S.C.) to succeed Mr. Sessions, especially after Mr. Graham’s vocal defense last week of now Supreme Court Justice Brett Kavanaugh.

.. “As I think about people who could be confirmed to that position in the Senate, Lindsey Graham is at the top of my list,” said John Cornyn of Texas, the Senate’s second-ranking Republican. “In fact, I can’t think of anybody else right now who could get confirmed.”

.. Mr. Trump has spoken about the possibility of Mr. Graham as attorney general, but has told his team that he is not inclined to choose him, given their turbulent history, according to people familiar with the discussions.
.. Mr. Graham called Mr. Trump a “race-baiting, xenophobic religious bigot.” Mr. Trump said Mr. Graham was a “lightweight” and an “idiot,” and gave out Mr. Graham’s mobile number during a campaign rally.
.. Another purported candidate, Sessions chief of staff Matthew Whitaker, has allies in the White House but also detractors, according to people familiar with the matter. As a commentator on CNN, Mr. Whitaker expressed skepticism about the special counsel probe and urged limits on its scope, a position likely to raise objections from Democrats and some Republicans... That leaves, for now at least, the five individuals currently under discussion at the White House. Three of them—Messrs. Azar, Bradbury and Sullivan—are serving in Senate-confirmed positions. They would have to be reconfirmed to serve as attorney general, but may have an advantage from having already won Senate approval.

.. Mr. Azar took office in January as Mr. Trump’s second health and human services secretary. He served as general counsel in former President George W. Bush’s administration, then headed an affiliate of pharmaceutical maker Eli Lilly & Co. before returning to Washington.Mr. Azar isn’t interested in the top job at the Justice Department, said a person familiar with his thinking.

.. Mr. Bradbury was sworn in last November as the Transportation Department’s chief legal officer after a narrow confirmation vote. Two Republicans joined Democrats in opposing Mr. Bradbury’s nomination, citing his role in helping author memos in the Bush administration that provided legal grounds for harsh interrogation techniques that some consider torture.

Mr. Bradbury defended his role, saying it was a difficult issue that drew strong opinions from both sides.

Mr. Sullivan, who was confirmed in May 2017, has served previously in senior positions in the Justice, Defense and Commerce departments. Before assuming office, Mr. Sullivan was a partner at Mayer Brown LLP.

.. Ms. Brown, appointed to the bench in 2005 by President George W. Bush, stepped down last year. She was among the most conservative voices on the D.C. Circuit, which hears numerous cases related to the federal government.