A First Take on Bill Barr’s Memo on Presidential Authority and the Mueller Investigation

For what it’s worth, here’s a very tentative first take on Bill Barr’s June 8, 2018 memo to Rod Rosenstein and Steve Engel.  Because I’m in the midst of other, time-sensitive matters, I’m afraid this won’t be as detailed and precise as it should be, for which I apologize in advance.  Much more to follow, I hope, from me and from others, especially those with greater knowledge of the obstruction statutes.

I assume most commentators–understandably concerned about how an Attorney General Barr might superintend Special Counsel Mueller–will focus on Barr’s construction of a federal obstruction statute, 18 U.S.C. 1512(c)(2), which makes it unlawful to “corruptly” obstruct, influence, or impede any official proceeding.  I’ll have a few words to say about that criminal provision later in this post, but I think it’s very important to stress two things at the outset:

First, most of Barr’s discussion of possible presidential culpability for “obstruction” is, I’ll predict, very much beside the point of the Mueller investigation (and Barr’s potential supervision of it), for I have serious doubts whether Mueller is considering whether to ask a grand jury to indict Donald Trump for a violation of 1512(c) or any other “obstruction” statute—not, anyway, in connection with his actual or (before that) threatened removal of FBI Director Comey, which is the principal subject of the Barr memo.

Indeed, the first huge and striking problem with Barr’s memo is that he unjustifiably makes countless assumptions about what Mueller is doing; about Mueller’s purported “theory” of presidential criminal culpability; about Mueller’s “sweeping” and “all-encompassing” “interpretation” of the statute and Constitution; about “Mueller’s core premise[s]” (e.g., Barr assumes Mueller is operating on the premise that a mere “claim” that Trump was impermissibly motivated is enough to trigger a wholesale investigation of the President’s motives, and that Mueller is applying a rebuttable presumption that any decision a President makes regarding himself was improperly motivated—Barr’s right that such assumptions/presumptions would be wrong, but who’s to say Mueller thinks otherwise?); about “unprecedented” steps Mueller is proposing to take; about “Mueller’s proposed regime”; about “Mueller’s immediate target”; about Mueller’s presumed failure to “provide a standard” for what constitutes “corruptly” trying to impede proceedings; about Mueller’s “demands” that the President submit to interrogation; etc.

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 discusses.  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.”

In this fairly fundamental respect, the memo strikes me as intemperate and precipitous—and its tone and alarm unwarranted.

Second, although I believe Barr’s views on the proper interpretation of section 1512(c) are wrong in important ways I discuss below (caution: criminal law experts will know more about this than I do about one or two of them), what’s of far greater concern about the memo are Barr’s views of the President’s constitutional role and prerogatives more broadly, rather than his views about whether Mueller could indict the President for “obstruction” under section 1512(c), something that’s very unlikely to happen.

So before getting to the “obstruction” questions, I’ll start with the more disconcerting constitutional matters, primarily those found on pages 9-11 of the memo.

This part of the 2018 memo is, in a sense, a version of Barr’s notorious 1989 OLC memorandum, boosted by the proverbial “steroids.”  It’s not hard to summarize Barr’s views because they’re so shockingly categorical and so extreme:  He asserts that the President “is” and “constitutes” the Executive branch; that the Constitution guarantees the President “illimitable” authority to remove all principal officers; and that the President enjoys an “absolute” and “all-encompassing” constitutional authority to control all exercises of discretion by Executive branch officers in implementing all their statutorily conferred enforcement powers (including decisions about criminal investigation and prosecution)—a “directory” presidential authority that Congress can’t constrain by statute (not even in cases where the President has a personal stake in the outcome!).

It’s hard to know where to begin in responding to such breathtaking claims.  Suffice it, perhaps, to say that they’re inconsistent with vast swaths of U.S. history; that they would undermine many common, well-established and well-accepted ways in which the Executive branch has operated for the past century or so (and in some cases much longer than that); and that the Supreme Court, led by Chief Justice Rehnquist (a proponent of presidential prerogatives!) overwhelmingly rejected somewhat more modest versions of this “uber unitary executive” theory when the Reagan Administration proposed it in Bowsher v. Synar and Morrison v. Olson.  See the first part of this recent post of mine.  See also the discussions in this 1996 OLC Memorandum at pages 133-135 (on the “General Separation of Powers Principle”) and 166-170 (on the removal power).  The 1996 OLC Memo was, in part, a corrective to the 1989 Barr memo, one in which OLC took seriously the Supreme Court’s understandings and the well-established structure of the modern administrative state, both of which Barr has now ignored in two memoranda, written 29 years apart.

I understand, of course, that there remain strong proponents of a “unitary executive” reading of the Constitution (and especially of the “vesting” clause of Article II)—obviously, Barr is among them.  And concededly my views are quite different from theirs.  It’s one thing, however, to articulate and advocate for a theory of how the modern Congress and Court (and Executive branch much of the time—see again that 1996 OLC Memo) might have made a wrong turn somewhere along the line.  It’s quite another to pretend, as the Barr memos appear to do, that constitutional understandings have not evolved much since Chief Justice Taft’s broad dicta in Myers v. United States (1926); to overlook the substantial and well-accepted independence from presidential control of many actors within the modern Executive branch; and to ignore altogether Chief Justice Rehnquist’s repudiation of the Taft dicta and his important distinction between the President’s undoubted duty and power to ensure the laws are faithfully executed and the much more aggressive argument, which the Court has soundly rejected, that the President has (in Barr’s words) an “all-encompassing” authority to control all exercise of statutory discretion by Executive branch officers.

I was hoping that Barr’s approach to such questions had been tempered somewhat, by experience and judicial rebuke, in the decades since he wrote his 1989 memo.  Alas, not so much.  His unforgiving perspective on Article II prerogatives, and Congress’s alleged inability to temper them, is, IMHO, a troubling perspective for a nominee to be Attorney General.  (I hope I’m not caricaturing or otherwise exaggerating Barr’s views, but I can’t see any other way to read his memo.  If readers disagree, please let me know, thanks.)

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Now I’ll turn toward Barr’s specific application of his constitutional analysis to the “obstruction” theory that he (without justification) assumed Mueller was considering.  It’s important to note that Barr makes most of his unconstrained constitutional claims (above) in support of a central premise of his memo, namely, his assertion (p.2) that Donald Trump presumptively did nothing wrong when he urged James Comey to go easy on Michael Flynn, or when he (possibly) fired Comey because of his zealousness in the Russia investigation, because the President has “plenary power over law enforcement” and “complete authority to start or stop a law enforcement proceeding.”  According to Barr, the prosecutorial discretion the Attorney General and DOJ lawyers exercise “is the President’s discretion”–“they are merely ‘his hand.’”

Barr isn’t the only one to invoke this lesser-included, criminal prosecution variant of the “unitary executive” theory.  One sees it quite frequently.  But that don’t make it so.  [UPDATE:  Indeed, as Dan Hemel and Eric Posner write in the Times, Barr’s “bizarre statements” about how DOJ attorneys exercise the President’s prosecutorial discretion, such that they’re “merely his hand” when they do so, are “not those of a lawyer but of a courtier.”]

As I recently wrote here, “[t]he central and most important insight in Rehnquist’s opinion in Morrison is that although Article II requires Congress to leave the President with adequate mechanisms to ensure that Executive officials, even ‘independent’ officials, faithfully comply with the law, the Constitution does not afford the President the unbridled authority to control other officers’ lawful exercise of the statutory discretion that Congress has assigned to them, at least where (as in Morrison) Congress has made clear that such discretion should not be subject to ‘political’ control of the President or other officials.”  That’s true as to criminal law enforcement, too—as demonstrated by both Morrison itself and the Nixon tapes case, in both of which the Court rejected a President’s claims that the Constitution gives him unbridled control over the exercise of law enforcement discretion.

Under fairly settled law, then, Congress has the authority to limit the President’s control over DOJ’s exercise of prosecutorial discretion—particularly in (but not limited to) cases that implicate the President himself and his advisors and other Executive branch officials.  That’s why Morrison v. Olson came out the way it did.  The fact that Barr doesn’t so much as even discuss these contrary precedents and historical practices is eye-opening, to say the least.

The much less certain legal question is not about the Constitution but about whether Congress has, in fact, left the President with any authority to countermand or direct DOJ’s (and thus the FBI’s) exercise of criminal law investigatory and prosecutorial decisions.  As the Court noted in the Nixon case–and contrary to Barr’s assumptions about how DOJ exercises the President’s discretion–Congress “has vested in the Attorney General the power to conduct the criminal litigation of the United States Government.”  418 U.S. at 694.  The President can surely remove an Attorney General if he concludes that the AG has acted unlawfully, or isn’t capable of exercising his duties.  But can the President forbid the AG (or the FBI Director, who’s subject to the AG’s supervision) from exercising his discretionary authority, conferred by statute, in ways that are lawful–or require the AG to seek charges that the AG has decided not to seek?

There hasn’t really been much occasion for courts, or anyone else, for that matter, to resolve this question of statutory interpretation, because in recent decades Presidents have established and honored a very important norm of “White House” noninterference in such discretionary matters of investigation and prosecution.  (Nixon directing AG Richardson to direct Special Prosecutor Cox not to subpoena the tapes in 1973 is the stark exception that proves the rule—and in that case Nixon was only able to “prevail” (for a few months, anyway) by effectively forcing out Richardson, his Deputy (Ruckelshaus) and Cox—at which point Congress and the public compelled Nixon to accede to a new regulatory regime under which Special Prosecutor Jaworski was afforded even greater independence on such questions, an independence affirmed by the Court in the Nixon tapes case.)

Regrettably, the Barr memo doesn’t so much as mention this norm of presidential noninterference—or, for that matter, the difficult question, which ought to have been a central part of his memo, of whether Congress has in any respect insulated the Attorney General from presidential direction of discretionary authority.  Again, this oversight is a troubling sign for an Attorney General nominee, and something worth asking him about at his forthcoming hearing.

At a minimum, I think it’s fair to say that Congress hasn’t afforded the President any statutory authority to direct the conduct of DOJ’s criminal investigations in a way that would violate his own constitutional oath and responsibility to take care the laws are faithfully executed.  And that’s important because if Mueller (or Congress) truly were to investigate the legality and propriety of Trump’s treatment of Comey, that would be the central legal question.  To be clear, although Barr does argue in his memo that a President may weigh in on a criminal investigation in which he has an interest—something that, again, would be deeply contrary to modern norms, at a minimum—it’s important to stress that Barr does not argue that Trump acted lawfully if he directed Comey to ease up, or if he removed Comey, merely in order to save his own hide, or that of his family and associates, in cases where criminal culpability would be appropriate.  In that case Trump would have been acting unconstitutionally—and Barr didn’t write otherwise in his memo, far as I can tell on a quick first read.

The main point of Barr’s memo, instead, is that this question of presidential motive when it comes to the exercise of his Article II functions is something that other officials and courts shouldn’t adjudicate or even investigate.

The memo includes a weaker and a stronger version of this argument.

The weaker version, to which Barr alludes on pages 10 and 13, is simply that it’d be deeply unfortunate and unwise for DOJ to begin a practice of investigating whether a “facially legitimate” exercise of the President’s Article II authorities was in fact motivated by illegitimate—i.e., self-interested—considerations, and whether such unconstitutional considerations were a “but for” cause of the President’s actions.

I’m very sympathetic to that version of the argument—and, more importantly, I suspect Bob Mueller and Rod Rosenstein are, too!  Which is precisely why I think that, despite breathless press leaks to the contrary (probably emanating from defense counsel), it’s highly unlikely Mueller has in mind to ask the grand jury to decide whether Trump’s motives for his treatment of Comey were “corrupt” or not.  That might be a proper subject for congressional consideration in the context of an impeachment proceeding, and for consideration by the electorate at the ballot box.  But I strongly doubt Mueller and Rosenstein (let alone Matthew Whitaker or the incoming AG) would conclude that it’s a question a criminal jury should determine, except perhaps in extreme circumstances.

It’s Barr’s stronger version of the argument that’s most disconcerting, however—the idea that Congress is constitutionally prohibited from even giving prosecutors and courts the authority to investigate the legitimacy of presidential motives in unusual cases where the legislature decides that such an inquiry might be necessary.  For the reasons I set forth above, I think that very aggressive constitutional argument is mistaken and potentially very troubling.

* * * *

Now, as for the obstruction statute itself, I’ll focus on three dubious claims in the Barr memo, two of which are specific to the possible application of section 1512(c) to the President, and the third of which is more general.  Please keep in mind, however, that I’m doing so not so much because I think these interpretive questions would be relevant to Barr’s possible supervision of Mueller–they probably wouldn’t be–but instead because of what else they might demonstrate about how this putative AG appointee thinks about presidential authority and the interpretation of criminal laws.

First, Barr argues that section 1512(c) should be construed not to apply to the President’s exercise of his Article II powers of “direction” and removal at all, based upon an allegedly “well-settled” canon of construction that “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” (p.6).

In my view the executive branch (including OLC) invokes this alleged “canon” far too indiscriminately.  But that’s a (complicated) topic for another day.  For now, what’s important is that Barr begs the critical question:  To be sure, an application of section 1512(c) to criminalize a proper exercise of, say, the President’s removal authority would be unconstitutional—indeed, such conduct wouldn’t satisfy the statutory standard itself because it wouldn’t be “corrupt.”  But if the President did not have the constitutional “prerogative” to use his Article II power in a particular way—say, for instance, firing an FBI Director in an effort to prevent DOJ from uncovering genuinely criminal conduct that’s worthy of investigation and possible prosecution—there’s no reason to construe the criminal statute not to apply to that purported (but illegitimate) exercise of presidential power, let alone to immunize the President categorically from the statute’s prohibition in all cases.  Once again, I’m confident any DOJ would be deeply reluctant to put to a jury the question of whether a legitimate, articulated presidential motive was a pretext for wrongful self-dealing.  But it doesn’t follow from that altogether salutary institutional reluctance that the statute itself should be construed not to cover any and all presidential exercises of an Article II function.

Second, and relatedly, Barr argues on page 17 that just as it wouldn’t be “corrupt” for an ordinary target of a criminal investigation to use otherwise lawful means to try to prevent himself from being prosecuted—“such as asserting an evidentiary privilege, or bringing public opinion pressure to bear on the prosecutors”—the same should be true for a self-interested President, as well.  “Even if the actor is guilty of a crime and his only reason for acting is to escape justice,” writes Barr, “his use of lawful means to impede or influence a proceeding are perfectly legitimate.”

That might be the case for a private party—and, for that matter, with respect to a President’s own assertion of an evidentiary privilege or use of the bully pulpit—but it fundamentally misunderstands the nature of a President’s exercise of his Article II powers of removal, pardon and (arguably) direction of the FBI.  The President’s use of those authorities of his constitutional office to advance his own self-interest, rather than the interests of the Nation, would not be “perfectly legitimate”—rather, it’d be a violation of his oath and his duty.  Therefore it would also be—at least in theory—a “corrupt” means of impeding a criminal investigation for purposes of section 1512(c) . . . again, if that criminal statute were in play here, though it probably isn’t.

Finally, one point on an argument in Barr’s memo about section 1512(c) that isn’t specific to the President:

If I’m understanding him correctly, Barr appears to argue (pp.4-5) that subsection 1512(c)(2) should be construed to apply only to methods of obstructing and hindering an investigation that are analogous to the sorts of obstructive activities listed in the adjacent subsection (c)(1)—namely, altering, destroying, mutilating or concealing a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding.

I’ll mostly leave this to the Crim Law experts.  I’ll simply point out that, absent further evidence to the contrary, I think it’d be fair to assume subsection (c)(2) would quite uncontroversially apply to someone who kidnaped or killed a prosecutor or a judge in order to obstruct, influence, or impede any official proceeding.  I don’t see any reason why it should be relevant, in such a case, that the alleged malefactor didn’t act upon a “record, document, or other object” as the means of obstruction. [UPDATE:  But to re-emphasize–I don’t have any background knowledge on this discrete 1512 question, so please take this one with a grain of salt.  A couple of readers have persuaded me that this question is a closer one than I might have suggested.  I am not wedded to my initial take.]

Images: Wikimedia Commons

 

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. Member of the editorial board of Just Security. You can follow him on Twitter (@marty_lederman).