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

If one intends to review this post, but has not yet read Part I (which is immediately below), I would start there ;).

I understand that William Barr’s nomination for Attorney General will be reported out of the Senate Judiciary Committee today. While I appreciate the unease that Democrats feel regarding the prospect of Mr. Barr’s directing the Special Counsel inquiry, I would suggest that their concerns are insufficient to reject his nomination. I would vote to confirm Mr. Barr as Attorney General.

As noted in Part I of this post, no one questions Mr. Barr’s objective qualifications to serve as U.S. Attorney General. The majority of Democrats’ concerns center on the memo he provided to the Justice Department (and President Trump’s legal team) in June of this year. While it strains credulity to discount the notion that Mr. Barr intended this memo as an application for the A.G. position, surprisingly little of the commentary I have heard has remarked upon what I consider a pertinent fact: that Mr. Barr’s apparent defense of the President was limited to what he considered, on public policy grounds, as an inappropriate expansion of the applicability of the federal obstruction of justice statute to acts of Executive discretion. Interestingly, he was making the case against such expansion at a time when conventional wisdom held (and apparently the President and his advisors believed) that Mr. Trump’s legal transgression, if any, had more or less arisen from an inadvertent obstruction of justice borne of his New York real estate instincts.

Beginning with Donald Trump, Jr.’s 2017 admission that the 2016 Trump Tower meeting involved a discussion of how Russian representatives could provide the Trump Campaign information damaging to Secretary Hillary Clinton’s campaign, a string of ever-more-damning revelations seems to be casting aside the previously prevailing impression that in their dealings with the Russians, members of the Trump campaign were shady dupes rather than active conspirators. Now, we have seen serious indications that (1) agents of the Russian government hacked the Democratic National Committee’s email server; (2) the Russian agents delivered the hacked emails to Wikileaks; and (3) Wikileaks was in communication with Mr. Trump’s longtime confidant, Roger Stone. Subject to correction by the learned eyes that read these pages, I understand that if Mr. Mueller is able to establish that Wikileaks affirmatively coordinated with the Trump Campaign, through Mr. Stone or otherwise, to “drop” electronically stolen DNC emails damaging to Ms. Clinton at times opportune to the Trump Campaign … that’s a criminal conspiracy.

It should seemingly be noted that Mr. Barr said little in his memo regarding the ramifications that would ensue if the Special Counsel presented solid evidence showing that the Trump Campaign had criminally conspired with the Russian Government against Sec. Clinton – and that what he did say, in light of current circumstances, may provide scant comfort to the President: “If [the President and his campaign engaged in illegal collusion], then the issue of ‘obstruction’ is a sideshow … Mueller should get on with the task at hand and reach a conclusion on collusion.

Partisans on both sides are currently all too-ready to impute ulterior motives to those with whom they disagree. If solid evidence that senior members of the Trump Campaign illegally colluded with Russia is presented to Mr. Barr by a universally-respected investigator, I suggest that one need assume either that he will bring the information to the Congress, or that he is a partisan – indeed, traitorous – blackguard. I am willing to believe, unless and until I have evidence to the contrary, that Mr. Barr will do what is necessary to protect the United States while conducting his duty. While he clearly auditioned for the position he will now hold, it should not be forgotten: that his opinions regarding the President’s constitutional prerogatives and the limitations of the federal obstruction of justice statute are legally defensible; that he is not a longtime confidant of President Trump, having risen in the G.H.W. Bush administration; that he has testified that he has respect for the Special Counsel, and does not believe that Mr. Mueller would engage in a “Witch Hunt”; and that he has indicated that he will release as much of the Mueller Report to the public as he can in accordance with DOJ guidelines. I judge his qualified responses regarding release of the Mueller report and any conflict of issues he might have to comport with what one would expect from an able, savvy public servant intent on keeping his options open. Even if he doesn’t release Mr. Mueller’s full report to the public (which could be for completely justifiable grounds such as protection of CIA and FBI sources and methods), it doesn’t mean that he won’t make the entire report available in closed session to appropriate members of Congress if there is evidence of behavior threatening to the Republic. I suspect that he will ultimately opt to release the full report, for two reasons: his failure to do so will raise doubts about his role in the process, and … it will inevitably get out anyway.

There is reportedly some Democratic concern that Mr. Barr might redact parts of the Mueller Report dealing with President Trump’s behavior because there can be no recourse against Mr. Trump arising out of the Special Counsel’s investigation; a sitting President cannot be indicted under DOJ guidelines. Even if such would be the case, I would offer that Democrats’ concerns are misplaced. I don’t believe that there is a DOJ policy against indicting a President’s relatives. If the Mueller team has uncovered solid evidence of collusion between senior Trump Campaign officials and Russian operatives, it will almost certainly implicate Donald Trump, Jr. and Jared Kushner; if indictments of those worthies are handed down, the media focus on their criminal proceedings will not only be tantamount to indicting the President, it will emasculate what remains of his presidency. We could ironically end up with a situation in which Republicans want the President removed from office, so they can begin a political recovery under then-President Pence, while Democrats are content to have Mr. Trump swing in the political winds.

One thought on “On William Barr’s Nomination for Attorney General: Part II

  1. Re William Bar

    I’m between XC ski and bicycling seasons, so I’m catching up on your posts. And enjoying your stuff a lot.

    I really admire your reduction of the William Barr issues and related legal principles to such clearly comprehensible (and, for what it’s worth, I believe correct) statements.

    I am thinking that there must be a wider audience for this sort of quality expository writing.

    If the American Bar Association and other bar associations were truly serving their fundamental purpose of educating the public about the law and legal institutions, there would be a forum for displaying your writing to the general public or perhaps to lawyers performing public speaking on political issues.

    Another idea is that if the public schools were performing their function of educating on civics and government, that too be an outlet for your piece as education of schoolteachers and students, probably at the high school level.

    Well done!


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