Attorney General nominee Bill Barr is facing calls today for his rejection due to the release of a June 2018 memo where Barr expresses his views on the scope of existing laws as they related to the Mueller investigation. It would be a bad call for Congress and a worst call for our country in seeking out the best nominees for these positions.
Call it his Ben Zobrist moment. A long critic of the use of umpires rather than electronic strike zones, Zobrist was thrown out in the ninth inning of a 2018 game against the Milwaukee Brewers after telling plate umpire Phil Cuzzi “That’s why we want an electronic strike zone.” I will readily admit that I am a die-hard Cubs fan and that I agree with Zobrist in his public calls to replace home plate umpires. However, the view expressed by Zobrist hardly warranted his ejection and seemed to reflect more the sensitivity of the subject than the substance of the conduct.
Bill Barr is now facing the same questionable call at the plate. Despite his prior service as United States Attorney General and an impeccable career, Democrats are citing his previously stated views on the Special Counsel investigation as somehow disqualifying him from confirmation.
Barr has previously criticized former FBI Director James Comey for his violation of long-standing department policies during the 2016 presidential election. His objections were virtually identical to those stated by many Democratic members of Congress but also to a long list of former high-ranking Republican and Democratic Justice officials. Indeed, Deputy Attorney General Rod Rosenstein referenced those officials in a memo excoriating Comey for his “serious mistakes” and citing former federal judges, attorneys general, and leading prosecutors who believed that Comey “violated longstanding Justice Department policies and tradition.”
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Barr has also noted that the Democratic contributions of members of the Mueller team are problematic for the Department in maintaining the appearance of the neutrality — a statement that seems unassailable and obvious.
Critics are now focusing on his criticism not of the Special Counsel investigation as a whole but the obstruction theory tied to the Comey firing. The latest issue involves a June 2018 memo that Barr wrote to Rosenstein as a former attorney general about the novel claims that he was reading about the use of obstruction laws in the Special Counsel investigation.
As Rosenstein himself said yesterday, former Justice officials are often consulted or share their views with their colleagues and Barr is known as someone who likes to maintain active dialogues with friends and colleagues on legal issues. When you are invited to lunch with Barr, you can expect an intense discussion over some intricacy of the criminal code or constitutional precedent. Even at 68, Barr displays the same precocious and insatiable mind that made him a legend at George Washington law school and the D.C. bar.
Dense analysis of legal issues
His idea of retirement is that he has endless time to run down any legal or constitutional issue. The June 2018 memo is quintessentially Bill Barr. It is a dense 19-page treatment of the statutory and constitutional issues touching on obstruction with dozens of citations and tight analysis covered decades of internal opinions and judicial precedent. It was also an issue that I had discussed with him in one of those legendary lunches.
Barr and I actually disagree on aspects of executive power. Barr is the product of the executive branch and holds a robust view of executive power as the driving force in our tripartite system. His natural default tends to be Article II and executive authority.
I am a Madisonian scholar who views Congress as the thumping heart of that system and my natural default is Article I. That makes lunches interesting. Nevertheless, I found Barr’s memo quite compelling and insightful. He was arguing that the likely provision being relied upon by Mueller on obstruction would present serious legal problems if pushed to cover the known facts surrounding the Comey firing. On this point, we agree. I have previously written that I do not see how an actionable obstruction case can be made on the known facts related to the firing. Moreover, Mueller has hired prosecutors including Michael Dreeben and Andrew Weissmann who advanced a sweeping interpretation of obstruction of justice that led to an unanimous and costly loss at the Supreme Court.
In the memo, Barr correctly notes that Mueller has a serious problem in the fact that there was no directly applicable grand jury or formal proceeding pending at the time of the firing. For that reason, Mueller would need to try to stretch one of the provisions, Section 1512(c)(2), to justify a demand for an interview with Trump on possible obstruction. Ironically, this provision raises many of the same issues from the Anderson prosecution in pushing the criminal code beyond prior interpretations or the presumed intent of the provision. The problem is that this provision has been used for cases of evidence impairment or destruction where there is an anticipated proceeding. Using the provision to potentially charge based on a president’s presumed intent behind an otherwise lawful use of authority would raise serious statutory and constitutional issues.
Barr disagrees with Trump legal team
It is worth noting that, in the same memo, Barr states categorically to Rosenstein that he rejects the arguments that a president cannot be charged with a crime in exercising presidential authority — a view voiced by some on Trump’s legal team. Barr expressly stated that he does believe that Trump can be charged with obstruction or related crimes if he destroys or alters evidence or suborns perjury or tampers with witnesses. He also rejects the motion that such enforcement of the laws would infringe on the president’s plenary power.
The sharing of these thoughts was entirely proper and the ethics office at Justice found nothing wrong or disqualifying in the memo. Previous attorneys general have voiced strong opinions on legal and political issues of their day. Many held political positions prior to their confirmation or issued opinions as judges on a wide array of issues. They were all leaders in the field and that comes with voicing their views on the best interpretations and practices.
People like Barr feel deeply about the Justice Department as an institution. When they see a threat to that institution or the rule of law, they voice them. That is precisely why they are leaders. Ironically, while some of us address such issues in soundbites, Barr covered it in 19 single spaced pages and enough footnotes to qualify as an outline for a tenure piece. Far from disqualifying, it is precisely why Barr is the right person for this position.
That brings to Ben Zobrist. One can understand why Zobrist’s comment to Cuzzi was ill-received, but it was an objection not the obstruction of the game. Removing one of the best players in the major leagues in the ninth inning did not make it a better game. We should not make that mistake in this confirmation.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY's board of contributors. He represented former Attorney General William Barr with other former attorneys general during the Clinton impeachment litigation.
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This article originally appeared on USA TODAY: Attorney general nominee William Barr shouldn't face opposition for honest legal memo