The Missing Bill Barr Obstruction Analysis

Robert Mueller has been criticized from both poles of the political spectrum for declining to conclude whether President Donald Trump engaged in conduct meriting his indictment for obstruction of justice. The far deeper mystery, however, is how Attorney General William Barr concluded that Trump did not commit an indictable offense.  Barr has yet to disclose his analysis, and his vague accounts of it to date are strikingly incomplete, and sometimes highly implausible.

In his March 24 four-page summary, Barr asserted that in none of the various scenarios outlined in the Mueller Report were the elements of an obstruction offense satisfied, stating:  “the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”  Following the release of the Mueller Report, Barr’s assertion appears difficult to understand. The Report details multiple efforts by Trump to interfere directly in, or terminate, ongoing grand jury investigations, including by firing Mueller or ending his office’s investigation of matters related to the 2016 election.  Over 1,000 former federal prosecutors have said that the conduct described in the Mueller Report would “result in multiple felony charges for obstruction of justice.”

To date, Barr has not faced remotely searching questions regarding the substance of his analysis, but we do have some hints.  In June 2018, prior to becoming Attorney General, Barr submitted a 19-page memorandum to Rod Rosenstein (who was then supervising Mueller’s investigation), as well as Trump’s defense team, titled “Mueller’s ‘Obstruction’ Theory.”  In the memo, Barr asserted that the primary federal obstruction of justice statute, 18 U.S.C. § 1512, is largely inapplicable to the president, and also argued that the Constitution effectively immunizes the president from criminal liability for interfering with, or even shutting down entirely, criminal investigations (including investigations of his own conduct), regardless of whether the president acts with corrupt intent.  Barr reasoned that, as the head of the Executive Branch, the president has plenary “discretion” to direct the operations of the Justice Department, and therefore cannot face criminal liability for doing so, even in a self-interested manner.

If Barr’s analysis of the conduct described in the Mueller Report was grounded upon the theories set forth in his June 2018 memo, then certain of the Attorney General’s conclusions might begin to make some sense.  In other words, applying Barr’s highly unusual view of the law could produce conclusions that diverge, at least in part, from those of the 1,000 former federal prosecutors.

One might therefore expect Barr to forthrightly embrace that proposition, and expressly state that the assertions in his four-page summary, which otherwise appear to be close to nonsensical, are grounded upon his own idiosyncratic views regarding the limited reach of the obstruction statute where the president is concerned.  The problem is that Barr’s presidential obstruction immunity theory has been widely panned by legal scholars, and is exhaustively and effectively rebutted in the Mueller Report.  Barr’s immunity theory would also likely meet with similar resistance from the wider public, which had little tolerance for Richard Nixon’s strikingly similar claim that, “when the president does it, that means that it is not illegal.”

With that background, it is understandable that Barr has been more than a little coy about whether he employed the rationales set forth in his 19-page memo in pronouncing that Trump did not commit an indictable offense. A number of clues nonetheless lead to the conclusion that this is, indeed, how Barr was able to reach his anomalous conclusion that the President’s serial efforts to interfere with, constrain or terminate the Russia investigation did not constitute obstruction of justice.

During testimony before the Senate Judiciary Committee on May 1, Barr proffered a number of make weight efforts to construe the facts recited in the Mueller Report in Trump’s favor, but when pressed, Barr appeared to advert to his presidential immunity theory. For example, in response to questioning from Senator Diane Feinstein, Barr stated that, “as a matter of law, the obstruction statute does not reach” a president’s firing of a special counsel.

During a recent interview with CBS News, Barr engaged in what can fairly be described as obfuscation regarding his analysis. For the first time, however, the Attorney General acknowledged that he had rejected “a lot of the legal analysis in the [Mueller Report],” which he said “did not reflect the views of the [Department of Justice].” Barr then said that “we applied the right law” in place of the purportedly wrong legal standards recited by Mueller.

Barr also continued to suggest, as he had during his Senate testimony, that he engaged in a factual, as well as legal, review and analysis.  As Charlie Savage described it, “On the one hand, Barr has changed whose understanding of the law he applied to the question of obstruction. On the other hand, he still says apart from that the facts were insufficient.”  Yet, while Barr insisted during the interview that he “looked at all the facts” relevant to Trump’s potential culpability, he previously acknowledged to Senator Kamala Harris that he had not actually reviewed any of the underlying evidence cited in the Mueller Report.  And in the absence of Barr identifying some evidence that is additional to, and substantially different from, the evidence recounted in the Mueller Report, it is exceedingly difficult to infer how Barr could have concluded that none of Trump’s audacious, serial efforts to interfere in the Russia probe satisfied the elements of obstruction under any conventional legal analysis.

Rather, a more plausible inference appears to be that, under Barr, the Justice Department has adopted a formulation of Barr’s own presidential immunity theory, or some other, similarly unusual, legal theory drastically limiting the scope of a president’s potential obstruction liability.  Here is where Barr’s obfuscation came to the fore, Barr told the interviewer that he was “not relying” on his June 2018 memo, but rather upon the “views within the department;” yet, it is entirely possible that those “departmental” views are similar (if not identical) to the views Barr advanced to Rosenstein, given that Barr, as Attorney General, is now the last word upon all such departmental policies.  Yet another possible reading here is that “views within the department” is a reference to statements made in years past by the Office of Legal Counsel, which Barr misconstrued in his 19-page memo. Once again, we don’t know because Barr has evaded the point, and he’s failed to disclose a written or oral record of his own analysis.

Even if Barr, ultimately acknowledges his personal views regarding presidential immunity have effectively been incorporated into Justice Department policy, further questions will remain.  As Marcy Wheeler has pointed out, in his June 2018 memo, Barr stated:

If a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

According to Barr, such misconduct, which was at the core of the obstruction allegations against Presidents Nixon and Clinton, does not implicate the exercise of Executive Branch authority underlying his presidential immunity theory.  The problem for Barr is that, as detailed in the Mueller Report, Trump engaged in precisely such misconduct. According to then-White House Counsel Don McGhan, Trump pressured him to create a false record related to the grand jury proceedings, which is the very kind of action that Barr expressly stated can amount to presidential obstruction.  Barr’s effort’s to construe the president’s conduct toward McGhan as innocent during his Senate testimony was not only strained, but indeed at direct odds with the facts recited in the Mueller Report, as Senator Feinstein demonstrated by reading from the relevant sections of the Report.

In sum, Barr’s fragmented accounts of his obstruction analysis to date, in the words of the Attorney General himself, just doesn’t “hang together.”  The burden for explaining how Barr came to his anomalous conclusions, and under exactly what legal theory, rests on him.  What’s more, Barr has, by his own repeated discussion of the subject, waived any putative privilege that might apply to this analysis.  The American public and Congress should therefore demand that the Attorney General disclose his analysis.

 

Image: U.S. Attorney General William Barr attends farewell ceremony for Deputy Attorney General Rod Rosenstein at the Robert F. Kennedy Main Justice Building May 09, 2019 in Washington, DC. (Chip Somodevilla/Getty Images)

 

About the Author(s)

David R. Lurie

David R. Lurie is an attorney whose practice focuses on commercial, corporate governance and securities litigation, as well as regulatory and enforcement matters. You can follow him on Twitter @davidrlurie).