https://www.wsj.com/articles/trumps-attorney-general-pick-criticized-an-aspect-of-mueller-probe-in-memo-to-justice-department-11545275973

Trump’s Attorney General Pick Criticized an Aspect of Mueller Probe in Memo to Justice Department

William Barr said obstruction of justice inquiry by special counsel is ‘fatally misconceived’

By Sadie Gurman and Aruna Viswanatha
Updated Dec. 19, 2018 10:57 p.m. ET

WASHINGTON—William Barr, President Trump’s choice for attorney general, sent an unsolicited memo earlier this year to the Justice Department that excoriated special counsel Robert Mueller’s inquiry into potential obstruction of justice by Mr. Trump, saying it is based on a “fatally misconceived” theory that would cause lasting damage to the presidency and the executive branch.

The 20-page document, which was reviewed by The Wall Street Journal, provides the first in-depth look at Mr. Barr’s views on the special counsel’s Russia investigation, which he would likely oversee if confirmed.

In the memo, Mr. Barr wrote he sent it as a “former official” who hoped his “views may be useful.” He wrote he was concerned about the part of Mr. Mueller’s probe that, according to news reports in the Journal and elsewhere, has explored whether Mr. Trump obstructed justice in asking then-FBI director James Comey to drop an investigation into former national security adviser Mike Flynn’s contacts with Russia, and by later firing Mr. Comey.

Mr. Barr’s memo, dated June 8 and sent to Deputy Attorney General Rod Rosenstein, argues that, based on the facts as he understands them, the president was acting well within his executive-branch authority.

Mr. Mueller has never fully confirmed the full scope of his investigation. Its primary focus is alleged Russian interference in the 2016 election and whether there were any links between Moscow and the Trump campaign.

Mr. Barr’s reasoning is likely to be closely scrutinized in confirmation hearings before the Senate, where Democrats and some Republicans have already promised to press him on how he would handle the Russia investigation, as well as on his expansive views of executive power.

When Mr. Barr was selected, White House officials said they believed he would be easily approved by a GOP-controlled Senate. He is expected to be formally nominated early next month, with a hearing shortly after. The White House had no comment Wednesday on Mr. Barr’s memo.

Mr. Barr wrote in the memo that he is “in the dark about many facts” regarding Mr. Mueller’s inquiry, and his analysis appears to be based largely on public accounts.

“As I understand it, his theory is premised on a novel and legally insupportable reading of the law,” Mr. Barr wrote. “Moreover, in my view, if credited by the Justice Department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the Presidency and to the administration of law within the Executive branch.”

Mr. Barr’s memo is peppered with strongly worded phrases about the peril he sees in Mr. Mueller’s reading of the law, as he understood it. He described Mr. Mueller’s approach as “grossly irresponsible” with “potentially disastrous implications” for the executive branch. He also wrote: “Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction.”

Mr. Barr declined to comment for this article through Justice Department spokeswoman Kerri Kupec, who added that Mr. Barr offered his views “on his own initiative.”

Mr. Barr’s arguments are consistent with a view expressed by some legal analysts that a president cannot be accused of obstruction if he is carrying out his duties as authorized by the Constitution. Others contend that if a president attempts to derail a lawful investigation for improper reasons, that amounts to obstruction of justice. The Barr memo cites previous legal analysis from both Democratic and Republican administrations.

Mr. Barr served as attorney general under Republican President George H.W. Bush. At the time he submitted the memo, he was a lawyer in private practice in Washington. Former officials occasionally provide unprompted input on legal matters to the Justice Department, according to people familiar with the matter.

Mr. Barr argued in the memo that a president can be accused of obstructing justice under the relevant legal provision if he knowingly destroyed evidence or encouraged a witness to lie. But Mr. Trump was lawfully exercising his authority in firing Mr. Comey, he wrote. If prosecutors pursue Mr. Trump over his comments to Mr. Comey about Mr. Flynn, according to the memo, it opens the door for every decision that is alleged to be improperly motivated to be investigated as “potential criminal obstruction.”

“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,” Mr. Barr wrote in the memo. “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 overly-zealous prosecutors.”

Mr. Trump’s lawyers, after extensive negotiations with the special counsel, submitted written answers last month to questions on Russia’s alleged interference in the election and whether the Trump campaign was involved in that effort. Mr. Trump has denied any collusion between his campaign and Moscow; Russia has denied interfering in the election.

Mr. Mueller’s prosecutors had earlier told the Trump legal team that they had dozens of questions for the president, including those focused on the circumstances of Mr. Comey’s firing, Mr. Flynn’s departure as national security adviser and any potential pardon for Mr. Flynn, who last year pleaded guilty to one count of lying to the FBI and whose sentencing was unexpectedly delayed on Tuesday.

Mr. Trump’s lawyer sent a letter to Mr. Mueller arguing that the president couldn’t be compelled to testify and asserting Mr. Trump’s actions couldn’t be considered obstruction because the president was exercising his lawful powers.

Mr. Barr sent the memo to Mr. Rosenstein, who was then overseeing the special counsel, and Steven Engel, head of the Justice Department’s Office of Legal Counsel. That office is often described as an in-house law firm for the executive branch, providing legal advice on official actions.

Department officials including Mr. Rosenstein, who associates say considers Mr. Barr a role model, didn’t seek Mr. Barr’s input and took no action as a result, according to a person familiar with the circumstances. Messrs. Rosenstein and Engel didn’t circulate it beyond their offices nor share it with either Mr. Mueller or Mr. Trump.

The person said the memo was generally viewed within the department as the thoughtful opinion of a former top official—akin to a newspaper op-ed, if a lengthy one.

Mr. Rosenstein, in a statement on Wednesday, said: “I have admired Bill Barr for decades, and I believe that he will be an outstanding Attorney General. Many people offer unsolicited advice…about legal issues they believe are pending before the Department of Justice. At no time did former Attorney General Barr seek or receive from me any non-public information regarding any ongoing investigation, including the Special Counsel investigation. His memo has had no impact on the investigation.”

After Mr. Trump offered him the job, Mr. Barr briefly told the president that he had written a memo about aspects of the Russia probe that could spur questions during his confirmation hearing, according to a person familiar with the process. It wasn’t immediately clear how Mr. Trump responded, but a second person familiar with the matter said the memo played no role in his decision to choose Mr. Barr. The person also said Mr. Barr shared the memo with the top lawyer representing the White House in the Mueller probe around the same time he gave it to Mr. Rosenstein.

Mr. Barr has at times been publicly critical of the Mueller investigation, which has led to a number of guilty pleas or convictions, including of Mr. Trump’s former campaign chairman and his former personal lawyer.

Ms. Kupec of the Justice Department said senior department ethics officials had determined Mr. Barr’s memo wouldn’t pose a conflict to his appointment. “Mr. Barr has stated that, if confirmed, he will make any decisions based on the actual facts and circumstances of any particular matter,” she added. But it would be too soon for ethics officials to weigh in on specific matters like whether he should step aside from the Russia probe, as he is not yet confirmed and it’s unclear where the investigation will stand if he takes office, a person familiar with the matter said.

But it is unlikely Mr. Trump would select an attorney general who would recuse himself from the Russia probe. Jeff Sessions, Mr. Barr’s predecessor as attorney general, did so because of his work in Mr. Trump’s campaign, a move that repeatedly drew the president’s ire. Mr. Mueller’s inquiry has shown some signs of nearing completion, but its timetable isn’t publicly known.