During his Senate testimony on Wednesday, Attorney General William Barr labored to explain his exoneration of President Trump and it was not pretty.
Barr’s primary arguments were not simply unconvincing, they would provoke derision if they came out of Rudy Giuliani’s mouth during one of his barely coherent late-night TV appearances.
For example, Barr has argued that Trump’s repeated efforts to engineer the firing of Special Counsel Robert Mueller did not evince a culpable “corrupt” intent—because Trump had managed to come up with a claim that Mueller had a “conflict” of interest, grounded in part on a supposed years’ old dispute over membership fees at a Trump golf course.
As former White House Counsel Don McGahn and others told Trump when he initially floated his “conflict” theory, it was “silly” and “not real.” Yet in Barr’s view, as the nation’s chief law enforcement officer, such a laughable pretense is all it takes to justify a president’s effort to engineer a Saturday Night Massacre-type firing of an aggressive prosecutor investigating him; if only Richard Nixon had come up with such a brilliant idea he might have avoided criticism for firing Archibald Cox.
Barr also suggested that Trump’s demand that McGahn prepare a false statement repudiating his prior testimony that Trump had directed the firing of Mueller lacked the requisite “nexus” to a grand jury proceeding because McGahn had previously given accurate testimony before the grand jury. The claim that tampering with a witness is OK after she has appeared once before a grand jury, is nothing short of absurd, and would be real news to the organized crime figures who have gone to jail “suggesting” that witnesses change their testimony, as Trump did.
As Jed Shugerman has pointed out, apart from legal frailty, there is another theme running through Barr’s effort to play defense lawyer for Trump during today’s hearing: Unlike Mueller, the nation’s chief law enforcement officer just doesn’t believe that a president can obstruct justice by interfering with or even terminating a law enforcement investigation, even an investigation of himself.
On Thursday, Senate Minority Leader Schumer (D-NY) wrote Barr, seeking confirmation that the attorney general believes a president is free to shut down a law enforcement inquiry into his own potential criminality without consequence, so long as the president feels that the investigation “is based on false allegations.” Such an “extremist view,” Schumer stated, “shows complete disregard for the carefully-designed system of checks and balances that the Framers enshrined in our Constitution. If these views are truly your views, you do not deserve to be attorney general.”
Barr explained this extreme view of presidential prerogatives in a 19-page memorandum that he wrote to Rod Rosenstein in June 2018, before he became attorney general, derisively titled Mueller’s “Obstruction” Theory. As Barr has confirmed he went so far as to urge that Rosenstein direct Mueller to terminate his obstruction investigation of Trump, coincidentally, much like Trump was trying to engineer himself.
In a prepared opening statement Barr submitted to the Senate prior to his testimony, the attorney general stated that he had put his extreme views of presidential obstruction immunity to one side when reviewing the evidence Mueller obtained, and had “accepted the Special Counsel’s legal framework for purposes of our analysis” of Trump’s potential liability.
As Barr later admitted under oath, however, that was untrue. When Sen. Dianne Feinstein (D-CA) pressed Barr on his argument that the president was home free from any potential obstruction liability because he had manufactured a “silly” conflict claim, the attorney general, in his own words, “shift[ed]” to his imperial president theory. He asserted that the obstruction statute “does not apply” as a “matter of law” to a president’s firing of a prosecutor investigating him. That, of course, is precisely the theory Barr set forth in his memo to Rosenstein, and that Mueller squarely rejected. Barr has, therefore, clearly disregarded the “legal framework” Mueller provided, and substituted his own assertion that the president is above the law.
Barr told the senators that “we have to stop using the criminal justice process as a political weapon.” Yet his testimony confirmed that Barr has been using the DOJ as just such a weapon. Under settled DOJ policy, a sitting president cannot be indicted. Yet Barr nonetheless reached out to declare that the president did not commit a prosecutable crime. The purpose of Barr’s action was patently political: to preempt Congress from even contemplating the possibility of impeaching Trump.
In Barr’s words, the Mueller Report has become “his baby,” to use as he wishes. Well, Mueller clearly thinks that the nation’s chief law enforcement officer has been engaging in child abuse