Prior to being appointed as Attorney General for a second time, William Barr outright dismissed Robert Mueller’s investigation into obstruction of justice. His recent summary of the Mueller report is just part of the package Trump wanted at the top of the Department of Justice.
It’s important to remember the series of events that preceded Barr’s appointment. President Trump did not hide his disdain for former Attorney General Jeff Sessions when Sessions decided to recuse himself from the Russia investigation. In June of 2017, Trump openly said he wouldn’t have appointed Sessions had he known he would recuse himself. And last year, Trump even asked Sessions to reverse his recusal, likely so he could suppress and/or undermine the special counsel’s investigation.
The reason for Barr’s appointment as Sessions’ replacement is apparent when looking at a memo Barr wrote in June of 2018. Six months before his appointment, Barr wrote an 18-page memo casting doubt on the legal reasoning behind Mueller’s questioning of whether or not President Trump obstructed justice in his firing of former FBI Director James Comey. While he made it clear he believed presidents were capable of obstructing justice, he didn’t believe Trump should be asked to “submit to interrogation about alleged obstruction,” stating that the special counsel’s “obstruction theory is fatally misconceived.”
Barr’s memo specifically cited 18 U.S.C. §1512(c), the federal statute defining obstruction of justice and penalties for violating it, in the memo. Under Barr’s interpretation of the statute, he splits hairs in defining “evidence impairment” (a precursor to obstruction) and a president carrying out “facially lawful acts taken by the President in exercising the discretion vested in him by the Constitution.” But as University of Chicago law professors Daniel Hemel and Eric Posner wrote in Lawfare last December, Barr’s reading of the law is dubious at best.
“Barr’s distinction between ‘evidence impairment’ and ‘facially-lawful acts’ is illusory,” Hemel and Posner wrote. “[T]earing up a piece of paper is ‘facially lawful,’ while tearing up a piece of paper so that it can’t be subpoenaed by a federal prosecutor is obstruction. Indeed, the whole reason we have obstruction statutes is to criminalize otherwise-legal acts that impede law enforcement functions.”
Attorney General Barr’s determination that there’s not evidence to justify an obstruction of justice charge against President Trump is laughable, considering what’s already been reported, and especially considering Barr’s own definition of presidential obstruction:
“Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if 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 availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence.”
In sworn testimony to Congress, former Trump lawyer and “fixer” (and former Republican National Committee deputy finance chairman) Michael Cohen stated that while Trump never directly told him to lie to Congress, his instructions to him to lie were communicated in a “code” that Cohen knew, having been around him for more than a decade. And Cohen’s testimony had to be delayed due to threats against him and his family that, according to him, came directly from Trump and his apparatchiks, like Rudy Giuliani. Both of these actions show that Trump acted to suborn perjury and induce a witness to change testimony. Even under Barr’s reading of that law, an obstruction charge against Trump would be warranted.
Barr’s summary of Mueller’s report noticeably included just 65 words from the 22-month investigation, and of those 65 words, none were a complete sentence. This fact was not lost on many political observers on Twitter, as the hashtag #ReleasetheFullMuellerReport trended following Barr’s announcement. If anything, the four-page summary Barr issued this weekend only further justifies calls to release the full report — if not to the public, at least to Congress. A partisan Attorney General appointed for his disdain for the Mueller investigation can’t be trusted to give the public the full story.