https://twitter.com/renato_mariotti/status/1075781926764601346

https://threadreaderapp.com/thread/1075781926764601346.html

THREAD: What should we make of the memo written by Trump’s Attorney General nominee that is sharply critical of Mueller’s obstruction investigation?

1/ Late last night @WSJ reported that Attorney General nominee William Barr wrote a memo and sent it to Rod Rosenstein (who oversaw Mueller) as well as the head of DOJ’s Office of Legal Counsel (which decides thorny legal issues for DOJ). Link to the memo:
https://drive.google.com/file/d/1j9vfRivaDw4ogkCOJhuDOSKstwhoDV5x/view?usp=drivesdk

2/ The memo is 19 pages long, single spaced. My initial reaction is that this memo took many hours for Barr to write—it is full of various legal citations and Barr’s analysis. At the time, Barr was a high-powered lawyer in private practice.

3/ A memo like this would cost a client tens of thousands of dollars. Why did Barr take this much time to write a lengthy memo criticizing Mueller and send it to DOJ? They didn’t ask for the memo. He also sent it to Trump’s personal attorneys, as @matthewamiller noted.

4/ Either Barr is very worked up about Mueller’s obstruction investigation or he was angling for a job.

The memo itself is an interesting read. Barr’s arguments are an expansion of views set forth by Dershowitz and by Trump’s own attorneys.

5/ Essentially the argument is that the president can’t obstruct justice by doing things that would otherwise be legal, even if he has the intent to obstruct justice, because criminalizing those actions would unconstitutionally limit or burden the president’s power.

6/ (Barr also makes arguments about the obstruction statute that are too complicated to explain here.)

A number of things strike me about Barr’s arguments.

First, Barr makes no meaningful effort to engage with opposing views.

7/ His views are outside the mainstream but no one reading the memo would know that because he doesn’t deal with counter-arguments. His memo reads more like an advocacy piece than neutral legal analysis. It goes further than most advocates, who usually address opposing views.

8/ At times Barr’s assertions or arguments are unfair or materially misstate the facts. For example: “the President’s motive in removing Comey and commenting on Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion.”

9/ That can’t be right for many reasons. First, it misstates the law—one can be guilty of obstruction even if one is not convicted of the underlying crime. Second, Flynn has other criminal liability. What if Trump wanted to save his friend from that?

10/ Third, what if Trump is guilty of something related to the matter but not “collusion” as Barr understands it?

There were several examples like this that jumped out at me during a quick read, but unlike Barr I don’t have the time or inclination to write 19 pages on this.

11/ Most importantly for me, Barr spends a lot of time talking about potential downsides of Mueller’s views on obstruction but Barr also does not address the potential serious implications of taking the position that officials can impede investigations without legal consequence.

12/ For Barr not to even consider and address the potentially serious consequences—a president that is above the law, for instance—is deeply troubling.

I should also note that Barr’s language is at times sharp and dismissive of Mueller and those who share his views.

13/ Overall, the picture this memo paints of Barr is a man who has intensely negative views of Mueller’s obstruction investigation and is unwilling to consider the many serious reasons why his own view is incorrect.

14/ There is no doubt in my mind that Barr would be an upgrade for Trump’s legal team.

There is also no doubt in my mind that his man should not oversee the Mueller investigation, and his approach calls into question his judgment. /end