UPDATE: On Feb. 14, 2019, the Senate confirmed William Barr to be the next attorney general of the United States by a vote of 54-45.
Last month, news broke that in June 2018, President Trump鈥檚 current nominee for attorney general, William P. Barr, sent an unsolicited 20-page to the Justice Department critiquing special counsel Robert Mueller鈥檚 current investigation into Russian election interference.
Barr, who previously served as attorney general under President George H.W. Bush, penned the memo as 鈥渁 former official deeply concerned with the institutions of the Presidency and the Department of Justice.鈥� The memo questions the scope of Mueller鈥檚 investigation, and it argues that Mueller should not be permitted to demand answers from the president about possible obstruction of justice based on attempts by Trump to pressure former FBI Director James Comey to drop his investigation of Trump鈥檚 ex-National Security Advisor Michael Flynn.
The fact that Barr sent Trump this memo, and may have subsequently been rewarded with a nomination to join Trump鈥檚 cabinet, raises serious concerns. To start, the memo鈥檚 legal theories advance an overly expansive view of presidential power. More specifically, the memo about whether Barr would order Mueller to halt further inquiry into possible obstruction by the president if the Senate confirms him. It even raises questions about whether Barr deliberately sought to curry favor with Trump by taking a position favorable to him in order to secure a top government position.
Legal commentators are divided in their interpretation of the Barr memo. Marty Lederman, a former top Obama administration lawyer, for 鈥渃onjuring from whole cloth a preposterously long set of assumptions鈥� about Mueller鈥檚 investigation. He also critiques Barr鈥檚 analysis, more broadly, for its sweeping views of the president鈥檚 constitutional role and prerogatives, including the notion that the president has 鈥渁bsolute鈥� and 鈥渁ll-encompassing鈥� constitutional authority over actions by executive branch officers in carrying out law enforcement powers given to them by Congress, including decisions about criminal investigation and prosecution. In a New York Times , Daniel Hemel and Eric Posner go further, arguing that Barr鈥檚 memo 鈥渟eriously damages his credibility and raises questions about his fitness for the Justice Department鈥檚 top position.鈥�
Others, however, have been more muted in their critiques. For example, Jack Goldsmith, who served as head of the Justice Department鈥檚 Office of Legal Counsel under George W. Bush, of Barr鈥檚 memo, maintaining that Barr鈥檚 positions on executive power have 鈥渟ignificant support鈥� in precedent. While that view may not be surprising coming from a former top lawyer in the George W. Bush administration, perhaps Goldsmith鈥檚 more interesting point is that a close reading of the Barr memo suggests that Barr has not already made up his mind to stop Mueller鈥檚 investigation into obstruction by Trump. Rather, Goldsmith suggests, the memo may actually and openly concede a plausible path to Trump鈥檚 eventual guilt. Goldsmith points to Barr鈥檚 statement that he is 鈥渋n the dark about many facts鈥� and Barr鈥檚 recognition that, at least in some circumstances, the president can commit obstruction of justice by sabotaging a proceeding鈥檚 truth-seeking function 鈥� for example, by encouraging perjury or inducing a witness to change his or her testimony.
That is a critical concession, according to Goldsmith, and it reduces the importance of what has been the most attention-grabbing argument in the Barr memo 鈥� that Mueller could not pursue an obstruction charge if Trump merely 鈥渉oped鈥� Comey would drop his investigation of Flynn or fired Comey without proof that Trump sought to impair evidence-gathering.
Even if Goldsmith is right that Barr has not entirely prejudged Mueller鈥檚 investigation, however, the memo is worrying and should trigger intensive scrutiny by the Senate during the upcoming confirmation hearings.
The Senate needs to press Barr on his views of executive power, which will have ramifications far beyond the Mueller investigation. The Senate should not confirm any attorney general whose extreme views of presidential power diverge from Supreme Court precedent and a proper regard for our constitutional separation of powers. My colleagues have already described how Barr previously laid the groundwork for massive violations of Americans鈥� privacy rights in creating the National Security Agency鈥檚 bulk data collection program. The Barr memo enhances our fears about how its author might further erode constitutional rights if he is again appointed attorney general.
The Senate needs to probe Barr on his views of obstruction of justice and how he might interpret the if he knew more about the facts. In particular, the public needs to know under what circumstances Barr would halt Mueller鈥檚 obstruction investigation. Even if Barr was acting as a well-intentioned former public servant, and not as a suppliant for a client, it is essential to scrutinize how his positions on the presidency could affect the ongoing investigation into possible malfeasance by this particular president. And the Senate must likewise demand answers from Barr on whether, and to what extent, he to keep secret portions of Mueller鈥檚 report, stymying further investigation by Congress.
Senators should ensure that the nation鈥檚 top law enforcement official isn鈥檛 going to stand in the way of a full and accurate account of key events in the Trump presidency.
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