The Missing Bill Barr Obstruction Analysis - Just Security

The Missing Bill Barr Obstruction Analysis - Just Security: 
by David R. Lurie
"The American public and Congress should demand that the Attorney General disclose his analysis."

Robert Mueller has been criticized from both poles of the political spectrum for declining to conclude whether President Donald Trump engaged in conduct meriting his indictment for obstruction of justice. The far deeper mystery, however, is how Attorney General William Barr concluded that Trump did not commit an indictable offense.  Barr has yet to disclose his analysis, and his vague accounts of it to date are strikingly incomplete, and sometimes highly implausible.

In his March 24 four-page summary, Barr asserted that in none of the various scenarios outlined in the Mueller Report were the elements of an obstruction offense satisfied, stating:  “the report identifies no actions that, in our judgment, constitute obstructive conduct, had a nexus to a pending or contemplated proceeding, and were done with corrupt intent.”  Following the release of the Mueller Report, Barr’s assertion appears difficult to understand. The Report details multiple efforts by Trump to interfere directly in, or terminate, ongoing grand jury investigations, including by firing Mueller or ending his office’s investigation of matters related to the 2016 election.  Over 1,000 former federal prosecutors have said that the conduct described in the Mueller Report would “result in multiple felony charges for obstruction of justice.”

To date, Barr has not faced remotely searching questions regarding the substance of his analysis, but we do have some hints.  In June 2018, prior to becoming Attorney General, Barr submitted a 19-page memorandum to Rod Rosenstein (who was then supervising Mueller’s investigation), as well as Trump’s defense team, titled “Mueller’s ‘Obstruction’ Theory.”  In the memo, Barr asserted that the primary federal obstruction of justice statute, 18 U.S.C. § 1512, is largely inapplicable to the president, and also argued that the Constitution effectively immunizes the president from criminal liability for interfering with, or even shutting down entirely, criminal investigations (including investigations of his own conduct), regardless of whether the president acts with corrupt intent.  Barr reasoned that, as the head of the Executive Branch, the president has plenary “discretion” to direct the operations of the Justice Department, and therefore cannot face criminal liability for doing so, even in a self-interested manner.

If Barr’s analysis of the conduct described in the Mueller Report was grounded upon the theories set forth in his June 2018 memo, then certain of the Attorney General’s conclusions might begin to make some sense.  In other words, applying Barr’s highly unusual view of the law could produce conclusions that diverge, at least in part, from those of the 1,000 former federal prosecutors.