If you’re looking to pin down the crime that Donald Trump has accused President Obama of committing, don’t look in the criminal code. For now, at least, “OBAMAGATE!” is not listed in Title 18, the crimes and criminal procedure section of the United States Code. But even if it were, Attorney General Bill Barr might have a tough time building a case against the former president.
That’s because the crux of what is ostensibly being alleged against Obama—that he illegally investigated the Trump campaign while he was president—could never be, by Barr’s own definition, a crime.
To understand the pickle that Barr finds himself in as he desperately tries to find a legal hook to substantiate Trump’s claims, we need go no further back than June 2018. That was when Barr, as a private citizen, sent an unsolicited memo to then-Deputy AG Rod Rosenstein, outlining his “theory” of Special Counsel Robert Mueller’s obstruction investigation into President Trump.
In a circular and rambling exposition, Barr explained that any obstruction charges stemming from Trump asking FBI Director James Comey to drop the investigation into his national security adviser, Michael Flynn, and his subsequent firing of Comey for failing to do so, would be fundamentally flawed. According to Barr, as long as Trump had any facially lawful grounds to take either of these actions, inquiring into his motives for doing so would be constitutionally off-limits.
Barr’s argument that both the firing of Comey and the attempt to get him to drop the case against Flynn are facially lawful rests on his interpretation of the Constitution. For the former, Article II permits the president to hire and fire executive branch officials, and, Barr claims, Congress cannot impose any limits on this prerogative.
For the latter, Barr offers an even more expansive view of executive power: “Under the Constitution, the President’s authority over law enforcement matters is nearly all-encompassing,” he wrote, and it includes “his absolute authority to start or stop a law enforcement proceeding.” The executive branch retains “all executive power,” Barr’s logic goes, and that power is embodied in the president—ergo, law enforcement, as merely one arm of his executive power, is basically an expression of his absolute will.
Barr isn’t the first person to espouse such an extreme view of executive power. During the years of President George W. Bush, this idea helped provide the legal justification for actions conducted in the war on terror, including torture. Former Deputy Assistant Attorney General John Yoo, who authored one of the so-called “torture memos” for the Justice Department’s Office of Legal Counsel, argued that the president’s inherent Article II power to protect national security was so broad that he could order his subordinates to crush the testicles of a terrorist’s child if he believed it would be in the country’s interest. Welcome to the “unitary executive” theory, which is essentially a legalese version of President Richard Nixon’s maxim that “if the President does it, it’s legal.”
And therein lies the rub. Barr’s own view of executive power makes the, er, bar very high when it comes to nailing Obama for wrongdoing. This is especially so since the subject matter for which Barr wants to hold Obama accountable—an FBI investigation into an attack by a hostile foreign power—involves the two areas where the unitary executive theory says the president exercises the most unfettered authority: law enforcement and national security.
If his defense of Trump is that he can’t commit a crime when trying to stop an investigation—even one in which he might have a personal interest—it’s hard to see how the person who occupied the same office before him could be liable for starting one, even if it was for political advantage.
This dilemma gives us an insight into Barr’s current strategy, and how he hopes to thread the needle with his recent actions. If you feel like you’ve been hearing the term “predicate” a lot since Barr became attorney general, it’s because that’s the term used to describe the basis of any FBI investigation.
Since Barr’s theory rests on the idea that a president’s actions are legal as long as there is any facially valid reason for taking them, he has to undercut the fundamental premise of the entire Russia investigation in order to distinguish Obama from his current boss. To wit: To avoid being hoisted by his own petard, Barr has to show that there was absolutely no legitimate basis, or “predicate,” for Crossfire Hurricane, the name for the FBI’s investigation into Russia’s 2016 election interference, from the get-go.
To be clear, a “predicate” is, under the Attorney General Guidelines, merely the information or set of facts that have to be documented to open a case—they are there to ensure that investigations aren’t opened on “hunches,” or merely on the basis of, say, someone’s race, or religion, or political beliefs. It’s a very low bar, and shouldn’t be confused with “probable cause,” which is a higher evidentiary threshold used to justify particular kinds of investigative techniques, like search warrants and wiretaps.
Basically, a predicate for an FBI investigation asks whether there is any factual basis to believe there may be a violation of federal law or threat to national security, and which justifies gathering more information.
That means that Barr has to demonstrate that the FBI had no reason to even inquire, or get more information on, contacts between the Trump campaign and Russia, during the time when the IC unanimously concluded that Russia had hacked into the DNC’s server in an attempt to influence the outcome of the 2016 election.
Viewed through this lens, Barr’s recent moves make more sense. The IG’s report found that Crossfire Hurricane, as well as the investigations into individual members of the Trump campaign, were properly predicated. But Barr has nevertheless personally tasked several hand-picked U.S. attorneys to find otherwise. He’s also moved to drop the charges against Flynn, arguing that the FBI had no legitimate predicate to even interview him about his secret calls with the Russian ambassador.
Slowly, Barr is chipping away at the foundations of the Mueller investigation. And it’s easy to see why. Because if he doesn’t, the same legal shield he used to defend Trump is the sword that can be used against him.