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Trump’s Attorney General Nominee Criticized Russia Investigation A Memo and a Recusal Decision Underscore Potential Threats to the Mueller Inquiry
(about 9 hours later)
WASHINGTON — William P. Barr, President Trump’s nominee to be attorney general, wrote an unsolicited memo to top Justice Department officials in June objecting to the notion that Mr. Trump may have committed the crime of obstruction of justice. WASHINGTON — Matthew G. Whitaker, who was installed last month as acting attorney general by President Trump, has cleared himself to supervise the special counsel’s investigation, rejecting the recommendation of career Justice Department ethics specialists that he recuse himself, a senior department official said on Thursday.
In a 19-page memo, Mr. Barr sharply criticized an apparent aspect of the investigation by the special counsel, Robert S. Mueller III, that Mr. Trump may have committed a crime by trying to get the F.B.I. director at the time, James B. Comey, to quash the criminal investigation into his first national security adviser, Michael T. Flynn, and later by firing Mr. Comey. The development came soon after the disclosure that the president’s nominee for attorney general, William P. Barr, had written a memo this spring in which he strongly criticized one of the main lines of inquiry by the special counsel, Robert S. Mueller III — whether Mr. Trump had committed obstruction of justice. Disclosure of the memo raised questions about whether Mr. Barr would order Mr. Mueller to shut down that component of the inquiry if the Senate confirmed him.
Mr. Barr argued that the Justice Department must not accept the notion that a president can violate a statute that criminalizes obstruction of justice by exercising his constitutional authority in an otherwise lawful way — such as by firing a subordinate, pardoning someone, or using his “complete authority to start or stop a law enforcement proceeding” — but with a corrupt motive. Together, the developments underscored the potential threats to Mr. Mueller’s ability to complete his work without interference at a time when his inquiry appears to be drawing closer to the White House and the president’s most trusted associates.
Mr. Barr’s views are likely to become a topic of intense scrutiny at his Senate Judiciary Committee confirmation hearing. They raise the question of whether, if he is confirmed and takes over supervision of Mr. Mueller’s inquiry as attorney general, he would order Mr. Mueller to shut down the obstruction-of-justice component of his investigation. “It’s becoming pretty clear that the president is basing his choices for leadership at the Justice Department on candidates’ criticism of the Mueller investigation,” Senator Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee, wrote on Twitter. “We can all see what’s happening here. It’s past time for Congress to pass bipartisan legislation protecting the special counsel’s investigation from political interference,” he said.
“Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction,” Mr. Barr wrote, adding: “Mueller’s obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.” Both developments trace back to Mr. Trump’s decision, a day after the midterm elections in which Democrats won control of the House last month, to oust Attorney General Jeff Sessions. Enraging Mr. Trump, Mr. Sessions had recused himself from overseeing investigations related to the 2016 election on the advice of department ethics officials because of his ties to the Trump campaign.
Mr. Sessions’s recusal left the deputy attorney general, Rod J. Rosenstein, in the role of acting attorney general for the investigation into whether the Trump campaign conspired with Russia in its election-interference operation, and whether Mr. Trump later obstructed justice.
After firing Mr. Sessions, Mr. Trump named Mr. Whitaker — whom the White House had earlier imposed on Mr. Sessions as his chief of staff — the acting attorney general until the Senate confirms a successor. He then nominated Mr. Barr, who had served as attorney general under President George Bush, for the position.
The immediate question raised by Mr. Trump’s postelection maneuvers was whether Mr. Whitaker would, like Mr. Sessions before him, recuse himself from overseeing the Russia investigation. Mr. Whitaker had publicly denigrated the special counsel inquiry before joining the administration; had worked on the campaign of a witness in the investigation, Sam Clovis; and had earlier interviewed with the White House to be its top in-house counsel for defending against the special counsel.
The Justice Department had refused to answer questions about whether ethics officials cleared Mr. Whitaker to take over supervision of Mr. Mueller. A department official said on Thursday that Mr. Whitaker had not been receiving briefings on the special counsel investigation, but had decided on Wednesday that he would not recuse himself and would instead assume final say over major investigative or prosecutorial actions Mr. Mueller wants to take.
Separately, the Justice Department provided to the Senate Judiciary Committee late on Wednesday a package of Mr. Barr’s writings and speeches. The documents included a 19-page, apparently unsolicited memo Mr. Barr sent to senior department officials in June in which he sharply criticized Mr. Mueller’s focus on whether Mr. Trump had obstructed justice.
[Read Mr. Barr’s memo.][Read Mr. Barr’s memo.]
Separately, a Justice Department official said on Thursday that Matthew G. Whitaker, the acting attorney general, had met with ethics experts at the Justice Department and would not be recusing himself from the Mueller investigation. The department had refused to say whether Mr. Whitaker was cleared to take over supervision of the special counsel after Mr. Trump last month ousted Attorney General Jeff Sessions and temporarily installed Mr. Whitaker in his place. Public speculation about an obstruction charge has focused on actions like Mr. Trump’s pressuring the F.B.I. director at the time, James B. Comey, to quash a criminal investigation into his first national security adviser, Michael T. Flynn, for lying to investigators about his conversations with the Russian ambassador; Mr. Trump’s firing of Mr. Comey; and the president’s seeming dangling of potential pardons at witnesses in Mr. Mueller’s inquiry.
It is unclear what ethics officials told him. But so long as Mr. Whitaker was not told that his recusal was required, it was up to him to decide whether to recuse, the official said. The Justice Department planned to send a letter to lawmakers on Thursday explaining the status of Mr. Whitaker’s ethics review, the official said. While acknowledging in his memo that he was “in the dark about many facts,” Mr. Barr argued that the Justice Department must not accept the notion that a president can violate a statute that criminalizes obstruction of justice when he is exercising his constitutional authority in an otherwise lawful way — such as by firing a subordinate, pardoning someone or using his “complete authority to start or stop a law enforcement proceeding” — but with a corrupt motive.
Mr. Whitaker openly criticized the Russia investigation before joining the Trump administration in the fall of 2017, indicating that he had already concluded that the Trump campaign did not conspire with Russia in its election interference operation. He had also interviewed with the White House for the job of being the main in-house lawyer for defending against the special counsel inquiry. “Mueller’s obstruction theory is fatally misconceived,” Mr. Barr wrote. “As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.”
The department’s clearance for Mr. Whitaker to supervise Mr. Mueller was first reported by CNN. Mr. Barr’s memo was first reported by The Wall Street Journal.
Mr. Barr’s memo was provided by the Trump administration to the Senate Judiciary Committee on Wednesday as part of his nomination materials. Its existence was reported earlier by The Wall Street Journal. Several Democrats reacted to the memo and the recusal decision with alarm. Representative Jerrold Nadler of New York, who will soon become chairman of the House Judiciary Committee, suggested that Mr. Whitaker was more concerned with satisfying Mr. Trump than protecting the department’s integrity. He said he would grill Mr. Whitaker at an oversight hearing next month.
Mr. Barr’s theory that obstruction-of-justice statutes cannot cover a president’s exercise of authorities echoed constitutional arguments put forward by other defenders of Mr. Trump over the past year, including Alan Dershowitz, the Harvard Law School professor. But the now open embrace of it by a nominee to take over the Justice Department — and supervision of Mr. Mueller — elevated the debate to new significance. Senator Dianne Feinstein of California, the ranking Democrat on the Senate Judiciary Committee, called Mr. Barr’s memo “very troubling” and portrayed it as essentially concluding that “the president is above the law.”
Several Democrats reacted with alarm. Senator Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, called Mr. Barr’s memo “very troubling,” saying it concluded that “the president is above the law.” “We need answers as to why Barr proactively drafted this memo and then shared it with the deputy attorney general and President Trump’s lawyers,” she said. “There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump and convey that he would protect the president.”
“We need answers as to why Barr proactively drafted this memo and then shared it with the deputy attorney general and President Trump’s lawyers,” she said. “There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump and convey that he would protect the president. The Justice Department has been under relentless attack by this president, and it needs a leader who is independent and able to defend the rule of law.” In criticizing the notion that the obstruction law can be applied to otherwise lawful presidential actions if they are undertaken with a corrupt motive, Mr. Barr argued that it would open the door to submitting not only presidents but also ordinary Justice Department prosecutors to the risk of second-guessing via criminal grand jury investigations.
And Senator Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee, wrote on Twitter, in response to the Barr memo, that “it’s becoming pretty clear that the President is basing his choices for leadership at the Justice Department on candidates’ criticism of the Mueller investigation.” “If embraced by the department, this theory would have potentially disastrous implications, not just for the presidency, but for the executive branch as a whole and for the department in particular,” he wrote.
Minutes later, citing the disclosure that Mr. Whitaker was taking over supervision of the Mueller investigation, Mr. Warner added in another tweet: “We can all see what’s happening here. It’s past time for Congress to pass bipartisan legislation protecting the Special Counsel’s investigation from political interference.” Several law professors criticized Mr. Barr’s memo, saying that it failed to address arguments against its conclusions. Appeals courts, they said, have ruled that acts that would otherwise would be lawful exercises of one’s rights, like a lawyer filing motions against the government, can constitute obstruction of justice if done with corrupt intentions.
The Supreme Court has never addressed the question of whether the Constitution permits Congress to enact a statute that would criminalize otherwise lawful exercises of presidential authority if the president acted with a corrupt motive. And in an analysis on the legal blog Just Security, Martin Lederman, a Georgetown University law professor and former Office of Legal Counsel official in the Clinton and Obama administrations, criticized Mr. Barr for claiming that the Constitution gives the president “all encompassing” and “illimitable” power over law-enforcement matters.
Still, courts have ruled in other contexts that otherwise lawful acts that look like an exercise of one’s rights can constitute obstruction of justice if done with corrupt intentions. In a 1998 case, for example, an appeals court upheld the conviction of a lawyer who had filed legal complaints and related motions against a government agent who was investigating an illegal gambling operation. The court ruled that the defendant’s “nominally litigation-related conduct” was unlawful because his real motive was “to safeguard his personal financial interests” in the corrupt enterprise. Such “breathtaking claims,” Mr. Lederman wrote, are “inconsistent with vast swaths of U.S. history,” including a 1988 Supreme Court precedent that Mr. Barr did not mention. In that case, the court upheld a statute in which Congress had authorized the appointment of independent counsels to investigate and prosecute executive branch wrongdoing outside the president’s control.
In the memo, Mr. Barr acknowledged that he might not have a full understanding of which aspects of Mr. Trump’s actions Mr. Mueller has been scrutinizing or why, saying, “I realize that I am in the dark about many facts, but I hope my views may be useful.” Other legal experts expressed surprise at how Mr. Whitaker had addressed ethics questions: Rather than requesting a formal ethics vetting and opinion under Justice Department regulations, he engaged in an informal conversation with the department’s career ethics lawyers that focused on statements like those he had made as a political commentator.
Mr. Barr wrote his memo on June 8, shortly after The New York Times had obtained and published a January 2018 memo from Mr. Trump’s legal team to Mr. Mueller that essentially laid out arguments against any effort by the special counsel to subpoena the president, including by arguing that obstruction-of-justice laws did not apply to Mr. Trump. After reviewing the matter, the ethics lawyers said the decision was a “close call” but advised Mr. Whitaker to recuse himself to avoid the appearance of a conflict of interest, the senior department official said. But because Mr. Whitaker had not asked for a formal review, they also apparently said the decision was up to him.
At the time, legal experts noted that arguments by Mr. Trump’s lawyers were beside the point because they had erroneously focused on the wrong obstruction-of-justice statute, and flagged instead the one Mr. Barr addressed as the law that potentially covered the president’s actions. Mr. Whitaker separately brought together his own ad hoc advisory council of four political appointees within the department, including an unidentified United States attorney.
In criticizing the notion that this law should be applied to Mr. Trump, Mr. Barr acknowledged that the two modern presidents subjected to impeachment proceedings, Richard Nixon and Bill Clinton, both were accused of obstruction of justice. But he distinguished their actions, saying that they centered on efforts to cover up the truth, such as by suborning perjury, rather than ordinary acts of executive authority. They recommended that he not recuse himself, arguing that there was no precedent for an attorney general to step aside solely because of appearances, the official said.
Accepting the theory that such a discretionary action could be criminal if undertaken with a corrupt motive, he said, would open the door to submitting not only presidents but also Justice Department prosecutors to the risk of criminal grand jury investigations to look into whether they acted with an improper purpose.
“If embraced by the department, this theory would have potentially disastrous implications, not just for the presidency, but for the executive branch as a whole and for the department in particular,” he wrote, adding: “All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. attorney — could be cast as a crime of obstruction.”
Mr. Barr addressed his memorandum to Rod J. Rosenstein, the deputy attorney general, who was then overseeing Mr. Mueller’s investigation as the acting attorney general for that matter because Mr. Sessions was recused from it, and to Steven A. Engel, the head of the Justice Department’s Office of Legal Counsel.
Known for advancing a broad view of presidential power, Mr. Barr previously led the Office of Legal Counsel and then served as attorney general in the first George Bush administration.