Do you trust Attorney General William Barr? | The Tylt
Attorney General William Barr's decision to go beyond Robert Mueller's conclusions and clear the president of obstruction of justice raised many questions from lawmakers and legal experts. Months before taking the attorney general position, Barr wrote an unsolicited memo arguing Mueller crossed a legal line by looking into possible obstruction by the president. Many worry this memo indicates Barr already made up his mind before seeing Mueller's actual report. Do you trust his judgment?
Do you trust Attorney General William Barr?
Attorney General William Barr summarized Robert Mueller's two-year investigation into the president, his campaign, the Trump organization, and potential ties to Russia in a four-page memo. He delivered the memo 48 hours after Mueller initially released his report.
In the memo, Barr states Mueller found no evidence that Trump or anyone in his orbit had deliberately coordinated with Russia in order to influence the 2016 election. On the issue of obstructing justice, Barr reports that Mueller was less definitive. The New York Times reports:
Mr. Mueller had investigated a range of the president’s actions as possible obstruction: pressuring James B. Comey, then the F.B.I. director, to drop an investigation into Michael T. Flynn, Mr. Trump’s first national security adviser; firing Mr. Comey; and the president’s lawyer dangling pardons to witnesses.
The pattern of behavior raised the question of whether Mr. Trump had violated obstruction-of-justice laws, which make it a crime to impede an investigation with corrupt intent. Courts have ruled that otherwise lawful actions can be such a crime if the motive was malign.
But investigators never got a chance to interrogate Mr. Trump about his motives. Concerned about his penchant for falsehoods and whether he might perjure himself, the president’s lawyers persuaded the special counsel team to accept written answers to their questions.
In his report, Mueller states he could neither determine with certainty the president had obstructed justice, nor could he fully exonerate him, thereby punting the decision to the attorney general.
“The special counsel’s decision to describe the facts of his obstruction investigation without reaching any legal conclusions leaves it to the attorney general to determine whether the conduct described in the report constitutes a crime,” Mr. Barr wrote, adding that he and his deputy “concluded that the evidence developed during the special counsel’s investigation is not sufficient to establish that the president committed an obstruction-of-justice offense.”
In the spring of 2018, before Trump had nominated him for the position of attorney general, Barr wrote a 19-page memo to the justice department criticizing Mueller's investigation into potential obstruction of justice by the president. Without any information beyond what was available to the general public, the New York Times reports Barr argued Mueller's investigation was unfounded.
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.
“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.”
Many lawmakers raised concerns when Barr was nominated for the position that he had shown a clear bias towards the president, while also indicating a shockingly expansive view of presidential powers.
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.”
“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.”
Renato Mariotti, a former federal prosecutor, wrote in a piece for Politico that Barr's memo, combined with his hasty and definitive determination that the president had not obstructed justice, indicates a bias towards the president.
As a practicing lawyer, it would take me dozens of hours to create a 19-page single-spaced memorandum containing nuanced legal analysis on any subject. I would not do so for free unless I felt very strongly about the issue. Although Barr claims otherwise in his letter, it is hard to escape the conclusion that he prejudged the matter and let his strong feelings about the subject influence his judgment.
Barr’s poor reasoning in the four-page summary will reinforce the conclusion that he prejudged the matter. For example, he claimed that because Mueller was unable to establish that Trump was “involved in an underlying crime,” that suggested that he lacked the intent to obstruct justice. That will come as a surprise to Martha Stewart and many other defendants who were convicted of obstruction of justice but not of any underlying crime. Simply put, that is a fragile reed upon which to support a finding that there was no obstruction.
Politifact interviewed several legal experts on the issue, most coming to the same conclusion as Mariotti—just because the president had not committed the crime of collusion does not mean he is absolved of any attempt to criminally hinder the Mueller investigation.
"You can obstruct justice even if a prosecutor ultimately finds you were not guilty of committing the crime that was the focus of the underlying investigation," said Miriam Baer, a professor at Brooklyn Law School. "Even if a prosecutor ultimately concluded that you weren’t guilty of crime X, that says nothing as to whether you thought that you might be indicted for crime X, or, for that matter, if you thought one of your friends of family members would be indicted for crime X."
Barr's decision to definitively declare the president did not obstruct justice is, according to these experts, based on specious arguments.
Not all legal experts were of the mind that Barr failed to do his due diligence. In an interview with the New Yorker, Jack Goldsmith, a professor of law at Harvard University, said he saw no issue with the letter or the conclusions Barr draws.
It was a carefully written but powerful letter by a man—Barr—who obviously understands the issues intimately. The letter also gave a glimpse of the professionalism and thoroughness of Mueller’s investigation and report. Both Barr and Mueller are seasoned D.O.J. professionals, and the letter exudes attention to right process and to Justice Department hierarchy and norms.
Many of Barr's critics seized on the speed with which he wrote his letter, submitting it to Congress only two days after initially receiving Mueller's report. These critics argued Barr could not have reasonably reached a conclusion on Mueller's information about possible obstruction of justice in such a short amount of time.
However, new information indicates Barr and Deputy Attorney General Rod Rosenstein were made aware of Mueller's non-decision on obstruction long before the release of the report proper. Per NBC News:
Special counsel Robert Mueller and members of his team informed Attorney General William Barr three weeks ago that they would not reach a conclusion on whether the president had obstructed justice, according to a person familiar with the meeting.
Both Barr and Deputy Attorney General Rod Rosenstein, who was also at the March 5 meeting, were surprised by this, the person said.
...Barr said the decision by Mueller "leaves it to the Attorney General to determine" whether the president obstructed justice.
And Barr concluded that Mueller's evidence of obstruction was "not sufficient to establish that the President had committed an obstruction-of-justice offense."
Critics had said Barr was too quick to react. However, the timing reveals that he had this information at least three weeks in advance of his decision.
Many in Trump's legal team agreed with Barr the case for obstruction of justice was based on acts the president has a constitutional right to do—namely firing subordinates—and he, therefore, could not be charged with a crime. NBC News reports:
Trump's legal team submitted a bevy of legal memos to the Justice Department, Sekulow said, some of which argued that the president could not be prosecuted for obstruction of justice as a result of an official act. That would open the door to second-guessing any governmental decision, they argued.
The Trump team took the position that "if you're going to try a novel theory on obstruction, you shouldn't try it on the president," the sources said.