Some thoughts about Bill Barr’s odd memo.
The attorney general’s four-page letter purports to summarize the Mueller report, and its toplines—no collusion but no exoneration—may have decisively shaped the narrative through the 2020 election.
But it is a strange piece of work and I have some questions.
Barr’s letter includes only a handful of actual quotes from Mueller’s report and his choice of language has drawn criticism for its apparent effort to spin some aspects of the probe. Until we see the full Mueller report we won’t know whether Barr’s letter faithfully summarizes its contents.
But other questions won’t be resolved so easily.
The point of having a special counsel is to insulate the process as much as possible from politics, and Robert Mueller seems to have successfully shielded the probe from such pressures and interference. But now we have a partisan political appointee inserting himself into the question of whether the president criminally obstructed justice.
Mueller himself made no determination on the question, apparently laying out both the cases for and against Trump’s guilt. This is, by way, consistent with previous investigations—including that of independent counsel Ken Starr ,who investigated Bill Clinton, and special prosecutor Leon Jaworski, who investigated Richard Nixon—who also made no firm determination about whether their subjects had committed obstruction. Instead, they merely transmitted their evidence, leaving it up to Congress to make its own determination. In both the cases of Nixon and Clinton, the charge of obstruction of justice became central to subsequent impeachment proceedings.
Under the law, Mueller was obligated to present his report to the Department of Justice, not Congress, but Barr could have transmitted the report without intervening. To be clear, nothing required Barr to render an ex post facto judgment on whether Trump should have been charged.
So why did Barr blunder into the issue? Did Mueller want or expect him to do so? Or did he expect that previous precedents would be followed?
At this point, all of that is speculation. What is not in doubt are the raging conflicts of interest surrounding both Barr and his deputy, Rod Rosenstein.
Barr’s qualifications for the job of attorney general are not in question; he was, after all, a former attorney general and widely respected in legal circles. And he was eminently more palatable than his egregious predecessor, the thoroughly hacky Matthew Whitaker.
But it seems more than a little plausible that he got the appointment as a result of a 19-page unsolicited memo he wrote in June 2018. Think of it as part resume, part audition for the role he now plays.
The memo was a detailed attack on Robert Mueller’s investigation into… wait for it… Trump’s obstruction of justice. In other words, Barr got his job in part by telegraphing that he would do exactly what he did this weekend.
In the June 2018 memo to Rosenstein (and shared with Trump’s legal team), Barr accused Mueller of pursuing a “fatally misconceived” legal theory of obstruction of justice. He argued that the president should not be investigated for taking actions that were within his powers, even if he used them to block an investigation. That would, of course, include firing the FBI director. Indeed, days after Trump fired James Comey, Barr rushed out an op-ed in the Washington Post defending the decision.
In the memo, Barr wrote that Mueller’s investigation “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.”
He also forcefully defended Trump’s stonewalling of requests for an interview with the special counsel. “Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction,” Barr wrote. Essentially, Barr was saying that Mueller was pursuing a made-up crime.
Legal observers were appalled by Barr’s logic. Writing for Lawfare, Mikhaila Fogel and Benjamin Wittes suggested that it was Barr who was making up facts. Not only had Barr adopted a “simplistic understanding” of Mueller’s approach to Trump’s possible obstruction of justice, they wrote, “ironically for a memo laying out the argument that Bob Mueller has made up a crime to investigate, the document is based entirely on made-up facts.”
Writing in Just Security, Marty Lederman also shredded Barr’s memo.
To read this memo, you’d think Barr were replying to a legal brief that Mueller had submitted in support of a prosecution of the President for obstruction of a federal proceeding. Yet as Barr concedes at the outset, he was “in the dark about many facts.” Indeed, he presumably was “in the dark” about virtually everything he wrote about. From all that appears, Barr was simply conjuring from whole cloth a preposterously long set of assumptions about how Special Counsel Mueller was adopting extreme and unprecedented-within-DOJ views about every pertinent question and investigatory decision—and that Deputy Attorney General Rosenstein was allowing him to do so, despite the fact that Mueller is required to “comply with the rules, regulations, procedures, practices and policies of the Department of Justice” and to “consult with appropriate offices within the Department for guidance with respect to established practices, policies and procedures of the Department.”
Fast-forward to this weekend, when Barr and Rosenstein announced that, notwithstanding Mueller’s clear statement that he had not exonerated the president, they had determined that the evidence gathered by Mueller “is not sufficient to establish that the president committed an obstruction of justice offense.”
They leaned heavily on the fact that Mueller had not established an “underlying crime,” which bore on Trump’s “intent with respect to obstruction.”
As William Saletan notes, there are a lot of problems with this argument, but the simplest of all that it “bypasses examination of Trump’s obstructive acts.”
“Barr simply defines whatever Trump did as nonobstructive, as long as an underlying conspiracy with Russia isn’t proved,” Saletan notes. “If Trump asked then–FBI Director James Comey to drop his investigation of Flynn, that’s fine.”
One final word here. It was Rosenstein who wrote the memorandum that was supposed to provide the justification for Comey’s firing. Trump himself stripped away that fig leaf when he acknowledged to Lester Holt that he fired Comey because of the “Russia thing.”
That alone ought to have been reason enough for him not to put his thumb on the scale with his new boss. But Rosenstein’s conflict pales before Barr’s.
Barr is a political appointee who had also already prejudged the case. He had used his attacks on Mueller’s obstruction probe to curry favor with the president who was the target of the investigation and who has tried for two years to discredit, impede, and perhaps obstruct it. Mission accomplished for both men.
Congress will surely have more than a few questions about Barr’s decision to intervene on exactly the question he had used to get his job.