Bill Barr Just Argued Himself Out of a Job

https://www.nytimes.com/2018/12/21/opinion/william-barr-attorney-general-memo-trump.html

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In an unsolicited memorandum sent to top Justice Department officials this past June, William Barr — who served as attorney general under President George H.W. Bush and is now President Trump’s nominee for that post again — argued that the special counsel, Robert Mueller, should not be allowed to demand answers from the president about possible obstruction of justice. Mr. Barr’s memo, which became public this week, seriously damages his credibility and raises questions about his fitness for the Justice Department’s top position.

At the outset, Mr. Barr acknowledges that he is “in the dark about many facts” that bear on the special counsel’s inquiry. He also claims that Mr. Mueller — who has never said whether he believes that the president obstructed justice — “is proposing an unprecedented expansion of obstruction laws.” He then says that “Mueller’s theory should be rejected,” again without knowing what Mr. Mueller’s theory is.

To his credit, Mr. Barr does not toe the line taken by the president’s former personal attorney, John Dowd, who claimed in a confidential memo to the special counsel in January that “by virtue of his position as chief law enforcement officer,” the president cannot be liable for obstruction. “Obviously,” Mr. Barr acknowledges, “the President and any other official can commit obstruction” by “sabotaging a proceeding’s truth-finding function” through evidence destruction or witness tampering.

Instead, Mr. Barr offers a more narrow theory that the president can obstruct justice only by “evidence impairment,” which seems to mean shredding documents or threatening witnesses and the like. Firing the F.B.I. director for failing to act on the same evidence is apparently O.K. But this argument does not bear scrutiny.

The relevant statute, Section 1512(c) of the federal criminal code, applies, as Mr. Barr says, to cases of evidence impairment, but it also applies to anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” — provided that they act “corruptly.” If destroying evidence to protect oneself from an investigation is obstruction, then so is pressuring a subordinate to ignore such evidence or drop the investigation altogether.

Mr. Barr argues that President Trump cannot be criminally liable under Section 1512(c)(2) because “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.” If Mr. Barr were right about this, then the president would be shielded from a host of uncontroversial laws, including the federal bribery statute, which does not mention the president but would seem to prevent him from selling a cabinet post to the highest bidder.

Mr. Barr also says that the obstruction statutes do not apply to “facially lawful” acts by the president such as the firing of an F.B.I. director, because presidents are constitutionally authorized to fire their subordinates. But the obstruction statutes do apply to actions that would be “facially lawful” under other circumstances. For example, there is no law against tearing up pieces of paper; there is a law against tearing up documents so that they cannot be subpoenaed by federal prosecutors. Firing the F.B.I. director is not a crime; firing the F.B.I. director in order to block an investigation into the president’s own actions very well might be.

Finally, Mr. Barr says that the president’s motive in removing James Comey as F.B.I. director “could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion.” Nonsense. Obstruction is a crime in itself, and for an obvious reason. If a criminal suspect successfully obstructs an investigation, the underlying crime is never discovered.

Twenty years ago, a bipartisan group of four former attorneys general warned that attacks on the independent counsel Kenneth Starr’s investigation of President Bill Clinton “by high government officials and attorneys representing their particular interests” appeared to have the “improper purpose of influencing and impeding an ongoing criminal investigation.” Mr. Starr — who was “effectively prevented from defending himself” because of confidentiality considerations — should be allowed to continue his work, the former attorneys general said, “without harassment by government officials and members of the bar.” Wise words, which apply to the current special counsel as much as they did to Mr. Starr. And Mr. Barr would do well to remember that he wrote those words himself.

Remember when President Trump demanded “loyalty” from Mr. Comey? If Mr. Barr is confirmed as attorney general, it looks as though the president will get what he wanted. “He alone is the Executive branch,” Mr. Barr wrote of the president. The attorney general and the Justice Department lawyers “who exercise prosecutorial discretion on his behalf” are “merely ‘his hand.’” These bizarre statements are not those of a lawyer but of a courtier.

The memo, which Mr. Barr shared with the White House as well as the Justice Department, shows that Mr. Barr has already made up his mind about the investigation and wanted to make sure that President Trump knew it. But now the Senate — which will soon vote on Mr. Barr’s confirmation — knows it, too. If the senators want the next attorney general to do the president’s bidding, then Mr. Barr’s memo makes the case that he is their man. But if the senators are looking for the country’s chief law enforcement officer to wait for the facts before rendering his judgment, then Mr. Barr just may have argued himself out of a job.

Daniel Hemel and Eric Posner are professors of law at the University of Chicago Law School.

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