The Barr Memo

Ken AshfordCourts/Law, L'Affaire Russe, Trump & AdministrationLeave a Comment

Trump’s pick for the Attorney General (to replace Jeff Sessions) is William Barr, who previously served as Attorney General under President George H.W. Bush.

In June 2018, Barr sent the Justice Department an unsolicited memo questioning the appropriateness of an obstruction probe special counsel Robert Mueller is said to be conducting of certain Trump actions in the White House.

Barr in the memo acknowledged that he was basing his assessment on what had been publicly reported about Mueller’s investigation and he recognized that he was “in the dark about many facts.” However, he argued that Mueller “should not be permitted to demand that the President submit to interrogation about alleged obstruction.”

The memo called Mueller’s obstruction theory “fatally misconceived” and as Barr understood it, premised on “a novel and legally insupportable reading of the law.”

The nearly 19-page memo suggested that, while there are certainly examples of obstructive conduct that could be investigated — destroying or altering evidence, suborning perjury, inducing witnesses to change testimony — President Trump, as far as Barr knew, wasn’t being “accused of engaging in any wrongful act of evidence impairment.”

The memo argued that Mueller was pushing an “unprecedented expansion of obstruction law” so that it reaches actions President Trump took that were within the “discretion vested in him by the Constitution.”

Barr warned that such a theory could have “potentially disastrous implications” for both the Presidency and the entire executive branch.

Barr said Mueller’s obstruction theory claims that he can investigate for a corrupt motive Presidential actions that on their face are within a President’s discretion.

“It is hard to imagine a more invasive approach encroachment on Executive Authority,” Barr wrote.

Here then is the memo:

Do I have criticisms? You bet. Barr takes issue with 18 USC 1512(c)(2) — the statute for which (he says) Mueller would use to prosecute Trump for obstruction. He asserts that the statute is typically used to prosecute the destruction (alteration, etc) of evidence, rather than the wholesale interference of an investigation.

But in claiming that using (c)(2) to prosecute Trump would be an expansion of his meaning, Barr virtually renders (c)(2) a nullity. Section (c)(2) is broad — it was clearly written as a catch-all.

Essentially, the first two pages of Barr’s memo contain a ludicrous logical error: He concedes that it is criminal for a President to alter any particular piece of evidence in an investigation but then argues it is perfectly okay for the President to deep-six all the evidence. If reducing all evidence to zero is not corrupting the evidence I’d like to know what is.

Barr’s stronger argument is that the supposed “expansive” reading of (c)(2) would impinge on the discretionary power of the President, the top law enforcement officer of the country. After all, the President has the power to “influence” an investigation, just as the Attorney General can.

However, I think Barr ignores the idea of an “Independent Counsel” and what that means. He purposely turns a blind eye to the idea that the Special Counsel is not within the normal chain of command within the Department of Justice.

Another consideration: Barr wrote this about 6 months ago. And Barr is basing his argument on is that Trump is not guilty of any crime and therefore, he can’t be guilty of obstruction. But six months ago, many people assumed that Trump had not committed any crimes. For example, Cohen’s office had only been raided two months earlier, but we had no inkling of what was unearthed. Now, we know..

For example, Barr wrote something which, six months ago, was inconceivable:

That seems like a concession that Barr made to show he is reasonable. But now, six months later, the facts have changed, and it seems quite possible that the evidence will show that the President did try to sabotage a proceeding’s fact-finding function. The concession paragraph above might bite Barr in the ass.

At the very least he’ll have to recuse himself on Mueller/Russia.

Anyway, seeing as how he might be Attorney General one day, this memo might prove problematic in his confirmation hearing.