On William Barr’s Nomination for Attorney General: Part I

It is being reported that the confirmation vote on President Trump’s nomination of William Barr to become Attorney General will be brought to the Senate floor in coming days. A delay in the process has been caused by Senate Judiciary Committee Democrats’ concerns regarding Mr. Barr’s broad view of presidential power and how those views might affect his reasoning as to what parts of Special Counsel Robert Mueller’s report will be made public. It has also been reported that Mr. Barr’s nomination is expected to be confirmed by the Senate when brought to a vote.

As I’ve indicated in several past notes addressing other Presidential nominations, I follow an admittedly simple two-factor analysis in deciding whether I think the nominee should be confirmed:   Is the nominee objectively qualified for the position? If so, is there any other objective factor that should nonetheless disqualify him/her from the position for which s/he has been nominated (e.g., prior criminal conviction, demonstrated drug abuse problem, etc.)? Since the Constitution provides our President the power to nominate whom s/he considers appropriate, I don’t believe that a nominee’s subjective leanings or policy positions (if within the bounds of law) should be part of the equation.

No one questions Mr. Barr’s objective qualifications to serve as U.S. Attorney General; indeed, he has already satisfactorily filled the post under President G.H.W. Bush. Democrats’ concerns focus on ancillary (albeit noteworthy) factors:

(1) That Mr. Barr seemingly auditioned for the job by sending Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel a memo (which Mr. Barr apparently also supplied to the President’s personal lawyers) disputing the legal premise, which Mr. Barr attributed to Mr. Mueller, that a President of the United States could be found guilty of obstruction of justice for performing what the nominee called “facially-lawful” acts due to an allegedly “improper motive.”

(2) That during his confirmation hearing, Mr. Barr refused to state that he will release the Special Counsel’s full report to the public.

(3) That Mr. Barr also testified that he will make his own judgement regarding whether to recuse himself from direction of Mr. Mueller’s investigation due to any perceived conflict of interest, even if such issues are raised by DOJ authorities.

It should be noted that Mr. Barr also testified that he would resign rather than discharge Mr. Mueller without good cause, that he has great respect for Mr. Mueller, and that he does not believe that Mr. Mueller would engage in a “Witch Hunt.”

The link to Mr. Barr’s memorandum is provided below. It is a dense document that only a lawyer would savor reviewing.  Although the nominee labored at length, his legal premise is narrowly focused on the applicability of the federal obstruction of justice statute to a President’s behavior; in his note, he asserted that particularly in what has become a hyper-partisan environment, we cannot risk hamstringing the Executive’s ability to perform a Constitutionally-authorized function by enabling opponents of the action to mount obstruction of justice hurdles to its execution based entirely on allegations that the Executive is acting due to an improper motive.

While I confess that I have not digested all of Mr. Barr’s memo, I did attempt to discern its gist, and note the following passages:

Page 1: “Obviously, the President … can commit obstruction [by] sabotaging a proceeding’s truth-finding function….[I]f 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 the availability of evidence, then he, like anyone else, commits the crime of obstruction [citing behavior by Presidents Nixon and Clinton].”

Page 3: “[I]f a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime – not a debatable one. [Emphasis in Original].”

Page 3: “Fourth, even if one were to indulge in Mueller’s obstruction theory … the President’s motive of removing Comey and commenting on Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion. [Underscore Mr. Barr’s emphasis; italics mine].”

Page 10: “The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct.”

Finally:

Pages 12 – 13: “Under the particular circumstances here, the issue of obstruction only becomes ripe after the alleged collusion by the President or his campaign is established first [sic] …. Until Mueller can show that there was unlawful collusion, he cannot show that the President had an improper ‘cover up’ motive….Either the President and his campaign engaged in illegal collusion or they did not. If they did, then the issue of ‘obstruction’ is a sideshow … Mueller should get on with the task at hand and reach a conclusion on collusion. [My Emphasis].”

https://assets.documentcloud.org/documents/5638848/June-2018-Barr-Memo-to-DOJ-Muellers-Obstruction.pdf

Are the Democrats’ concerns about Mr. Barr’s legal opinions and restricted responses regarding conflict of interest and publication of the Mueller Report sufficient that his confirmation should be denied? I submit that they are not … but also that Mr. Barr’s positions may ultimately provide less comfort to the President than Mr. Trump thinks. To finish in Part II.

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