President Donald Trump's pick for attorney general, William Barr, sent an unsolicited memo to the Justice Department this year criticizing a central prong of the special counsel's Russia investigation, attacking as "fatally misconceived" the idea the president could have obstructed justice.
The memo, sent in June while Barr was in private practice and months before he was selected by Trump for the Justice Department job, could factor into his future confirmation hearings before the Senate Judiciary Committee and may prompt questions about his ability to oversee the special counsel's investigation in an open-minded and impartial manner.
The document argues there could be disastrous consequences for the Justice Department and the presidency if special counsel Robert Mueller were to conclude that acts a president is legally permitted to take — whether firing an FBI director or granting a pardon — could constitute obstruction because of a subjective determination that they were done with corrupt intent.
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"Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction," Barr wrote. "Apart from whether Mueller (has) a strong enough factual basis for doing so, Mueller's obstruction theory is fatally misconceived."
Barr acknowledged that a president can commit obstruction of justice by destroying evidence or tampering with witnesses. But, he said, he is unaware of any accusation like that in the Mueller investigation, and he said it would "do lasting damage to the Presidency and to the administration of law within the Executive branch" if an act like the firing of ex-FBI chief James Comey could amount to obstruction.
Some Senate Democrats, including Minority Leader Chuck Schumer, expressed alarm over the memo. The outgoing Republican chairman of the Senate Judiciary Committee, Sen. Chuck Grassley, said he was confident Barr would address questions over it, noting: "It may be a very serious issue, or it may be a less serious issue. Or it may not be an issue at all."
Sen. Lindsey Graham, the incoming committee chairman, said he wasn't bothered by the document though he noted he didn't agree with everything in it.
"People can have opinions. They can express them," Graham said. "They can be advocates. It doesn't mean they're disqualified."
Mueller and his team of prosecutors have spent the last year and a half investigating not only whether the Trump campaign coordinated with Russia but also whether the president might have obstructed justice by, among other actions, asking Comey to drop an investigation into his national security adviser and firing the FBI director months later. That firing paved the way for Mueller's appointment.
In drafting the document, Barr weighed in on contentious legal questions surrounding the scope of the president's executive power. Trump and his lawyers have resisted answering questions related to the obstruction inquiry, saying prosecutors can't second-guess actions the president takes in office.
"I know you will agree that, if a DOJ investigation is going to take down a democratically-elected president, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime — not a debatable one," Barr wrote.
"It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by over-zealous prosecutors," he added.
The memo's existence was first reported by The Wall Street Journal.
It was sent to Deputy Attorney General Rod Rosenstein, who appointed Mueller, and to Steven Engel, the head of the Justice Department's Office of Legal Counsel, which provides legal advice to executive branch agencies. The document was produced to the Judiciary Committee, which released it along with questionnaire responses that Barr submitted to the panel.
Rosenstein downplayed its significance at an unrelated news conference Thursday, defending Barr's record as attorney general — he served from 1991 to 1993 under President George H.W. Bush — and saying he'll be "outstanding" again if confirmed for the job.
"Lots of people offer opinions to the Department of Justice, but they don't influence our own decision making," Rosenstein said. "We have very experienced lawyers and obviously our decisions are informed by our actual knowledge of the facts of the case, which Mr. Barr didn't have."
The memo adds to a record of other statements from Barr over the last year or so about the Mueller investigation. Those include comments to a newspaper expressing concern that multiple members of the Mueller team had made political contributions to Democratic political candidates. Acting Attorney General Matthew Whitaker has criticized the investigation in even more pointed ways.
A spokesman for Mueller declined to comment.
Justice Department spokeswoman Kerri Kupec said Barr's views were based solely on publicly available information and were expressed "on his own initiative." In the memo, Barr says he is writing "as a former official deeply concerned with the institutions of the Presidency and the Department of Justice." He acknowledged he was "in the dark about many facts."
Kupec said in a statement: "Following the announcement of Mr. Barr's nomination, senior Department ethics officials were consulted and advised that, under the applicable rules of professional conduct, Mr. Barr's memo would present no conflict as to his duties as Attorney General. Mr. Barr has stated that, if confirmed, he will make any decisions based on the actual facts and circumstances of any particular matter."
Associated Press writer Elana Schor in Washington contributed to this report.