Trump’s Attorney General Nominee Criticized Russia Investigation – The New York Times

Trump’s Attorney General Nominee Criticized Russia Investigation – The New York Times

WASHINGTON — William P. Barr, President Trump’s nominee to be attorney general, wrote an unsolicited memo to top Justice Department officials in June objecting to the notion that Mr. Trump may have committed the crime of obstruction of justice.

In a 19-page memo, Mr. Barr sharply criticized an apparent aspect of the investigation by the special counsel, Robert S. Mueller III, that Mr. Trump may have committed a crime by trying to get the F.B.I. director at the time, James B. Comey, to quash the criminal investigation into his first national security adviser, Michael T. Flynn, and later by firing Mr. Comey.

Mr. Barr argued that the Justice Department must not accept the notion that a president can violate a statute that criminalizes obstruction of justice by exercising his constitutional authority in an otherwise lawful way — such as by firing a subordinate, pardoning someone, or using his “complete authority to start or stop a law enforcement proceeding” — but with a corrupt motive.

Mr. Barr’s views are likely to become a topic of intense scrutiny at his Senate Judiciary Committee confirmation hearing. They raise the question of whether, if he is confirmed and takes over supervision of Mr. Mueller’s inquiry as attorney general, he would order Mr. Mueller to shut down the obstruction-of-justice component of his investigation.

“Mueller should not be permitted to demand that the president submit to interrogation about alleged obstruction,” Mr. Barr wrote, adding: “Mueller’s obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch.”

[Read Mr. Barr’s memo.]

Separately, a Justice Department official said on Thursday that Matthew G. Whitaker, the acting attorney general, had met with ethics experts at the Justice Department and would not be recusing himself from the Mueller investigation. The department had refused to say whether Mr. Whitaker was cleared to take over supervision of the special counsel after Mr. Trump last month ousted Attorney General Jeff Sessions and temporarily installed Mr. Whitaker in his place.

It is unclear what ethics officials told him. But so long as Mr. Whitaker was not told that his recusal was required, it was up to him to decide whether to recuse, the official said. The Justice Department planned to send a letter to lawmakers on Thursday explaining the status of Mr. Whitaker’s ethics review, the official said.

William P. Barr, President Trump’s nominee to be attorney general, wrote an unsolicited memo criticizing the investigation by the special counsel.CreditTime Warner, via Associated Press

Mr. Whitaker openly criticized the Russia investigation before joining the Trump administration in the fall of 2017, indicating that he had already concluded that the Trump campaign did not conspire with Russia in its election interference operation. He had also interviewed with the White House for the job of being the main in-house lawyer for defending against the special counsel inquiry.

The department’s clearance for Mr. Whitaker to supervise Mr. Mueller was first reported by CNN.

Mr. Barr’s memo was provided by the Trump administration to the Senate Judiciary Committee on Wednesday as part of his nomination materials. Its existence was reported earlier by The Wall Street Journal.

Mr. Barr’s theory that obstruction-of-justice statutes cannot cover a president’s exercise of authorities echoed constitutional arguments put forward by other defenders of Mr. Trump over the past year, including Alan Dershowitz, the Harvard Law School professor. But the now open embrace of it by a nominee to take over the Justice Department — and supervision of Mr. Mueller — elevated the debate to new significance.

Several Democrats reacted with alarm. Senator Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee, called Mr. Barr’s memo “very troubling,” saying it concluded that “the president is above the law.”

“We need answers as to why Barr proactively drafted this memo and then shared it with the deputy attorney general and President Trump’s lawyers,” she said. “There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump and convey that he would protect the president. The Justice Department has been under relentless attack by this president, and it needs a leader who is independent and able to defend the rule of law.”

And Senator Mark Warner of Virginia, the top Democrat on the Senate Intelligence Committee, wrote on Twitter, in response to the Barr memo, that “it’s becoming pretty clear that the President is basing his choices for leadership at the Justice Department on candidates’ criticism of the Mueller investigation.”

Minutes later, citing the disclosure that Mr. Whitaker was taking over supervision of the Mueller investigation, Mr. Warner added in another tweet: “We can all see what’s happening here. It’s past time for Congress to pass bipartisan legislation protecting the Special Counsel’s investigation from political interference.”

The Supreme Court has never addressed the question of whether the Constitution permits Congress to enact a statute that would criminalize otherwise lawful exercises of presidential authority if the president acted with a corrupt motive.

A Justice Department official said on Thursday that Matthew G. Whitaker, the acting attorney general, would not be recusing himself from the Mueller investigation.CreditPablo Martinez Monsivais/Associated Press

Still, courts have ruled in other contexts that otherwise lawful acts that look like an exercise of one’s rights can constitute obstruction of justice if done with corrupt intentions. In a 1998 case, for example, an appeals court upheld the conviction of a lawyer who had filed legal complaints and related motions against a government agent who was investigating an illegal gambling operation. The court ruled that the defendant’s “nominally litigation-related conduct” was unlawful because his real motive was “to safeguard his personal financial interests” in the corrupt enterprise.

In the memo, Mr. Barr acknowledged that he might not have a full understanding of which aspects of Mr. Trump’s actions Mr. Mueller has been scrutinizing or why, saying, “I realize that I am in the dark about many facts, but I hope my views may be useful.”

Mr. Barr wrote his memo on June 8, shortly after The New York Times had obtained and published a January 2018 memo from Mr. Trump’s legal team to Mr. Mueller that essentially laid out arguments against any effort by the special counsel to subpoena the president, including by arguing that obstruction-of-justice laws did not apply to Mr. Trump.

At the time, legal experts noted that arguments by Mr. Trump’s lawyers were beside the point because they had erroneously focused on the wrong obstruction-of-justice statute, and flagged instead the one Mr. Barr addressed as the law that potentially covered the president’s actions.

In criticizing the notion that this law should be applied to Mr. Trump, Mr. Barr acknowledged that the two modern presidents subjected to impeachment proceedings, Richard Nixon and Bill Clinton, both were accused of obstruction of justice. But he distinguished their actions, saying that they centered on efforts to cover up the truth, such as by suborning perjury, rather than ordinary acts of executive authority.

Accepting the theory that such a discretionary action could be criminal if undertaken with a corrupt motive, he said, would open the door to submitting not only presidents but also Justice Department prosecutors to the risk of criminal grand jury investigations to look into whether they acted with an improper purpose.

“If embraced by the department, this theory would have potentially disastrous implications, not just for the presidency, but for the executive branch as a whole and for the department in particular,” he wrote, adding: “All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case — such as removing a U.S. attorney — could be cast as a crime of obstruction.”

Mr. Barr addressed his memorandum to Rod J. Rosenstein, the deputy attorney general, who was then overseeing Mr. Mueller’s investigation as the acting attorney general for that matter because Mr. Sessions was recused from it, and to Steven A. Engel, the head of the Justice Department’s Office of Legal Counsel.

Known for advancing a broad view of presidential power, Mr. Barr previously led the Office of Legal Counsel and then served as attorney general in the first George Bush administration.

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