//  1/15/19  //  Latest Developments

In a prepared statement to be delivered at his long-awaited confirmation hearing, Attorney General nominee William Barr has expressed confidence in Special Counsel Robert Mueller and support for Mueller’s investigation. “On my watch,” Barr writes, “Bob will be allowed to complete his work.” This statement has rightfully dominated headlines, and in light of Barr’s prior remarks, it is welcome and reassuring.

Barr’s statement echoes the assurances that the Senate demanded—and received—from Richard Nixon’s attorney general nominee Elliott Richardson at the outset of the Watergate scandal. It was Richardson who later refused to carry out Nixon’s order fire the first Watergate special prosecutor Archibald Cox, triggering the famed “Saturday Night Massacre.” Nixon eventually got his way, but the public reaction forced him to appoint another genuinely independent special prosecutor, whose investigation led directly to Nixon’s resignation.

Contrary to the suggestions of some conservatives, it is entirely proper for the Senate to require such reassurances as a condition of confirming the nominee of a scandal-plagued president. That is why the Constitution gives the Senate the power to advise and consent on presidential nominees—to ensure “a judicious choice of men for filling the offices” of the national government. These are the words of Alexander Hamilton in Federalist 76. Having made such a commitment, Barr would be exceedingly unlikely to fire Mueller at Trump’s direction. And if Trump forced the issue by firing Barr, he would run a grave risk of impeachment and removal by the U.S. Senate.

But Barr's statements do not put to rest all doubt about his nomination—far from it. His carefully drafted assurance that Mueller “will be allowed to complete his work” could be read as limited to the collusion side of Mueller’s investigation. On the subject of obstruction of justice, Barr’s remarks are conspicuously cagey and do little to assuage concerns raised by the memo he wrote on this subject as a private citizen last June.

Barr misleadingly describes that memo as narrow and hypothetical. To support this description, he denies arguing that the President can never commit obstruction of justice. This denial is true, but it does not make Barr’s argument narrow. In fact, his memo is premised on a broad and extreme theory that the president cannot commit obstruction of justice when exercising “the discretion vested in him by the Constitution.” This would include acts such as firing the FBI director or supervising federal law enforcement. If this theory is right, Richard Nixon did not obstruct justice when he ordered the CIA to shut down the FBI’s Watergate investigation on bogus national security grounds.

If Barr is confirmed as Attorney General, he will have the authority to block Mueller from seeking President Trump’s testimony on obstruction of justice. This could be fatal to Mueller’s investigation of Trump’s state of mind, the linchpin of any obstruction case. Barr will also have the authority to shut down the obstruction side of Mueller’s investigation as legally baseless—or “fatally misconceived,” to quote his memo.

If this were made public, it would be sure to create a firestorm of controversy. But there is no guarantee that such a move would get out in time for public reaction to make any difference. If it did get out, Barr could plausibly claim that he never promised to allow any particular aspect of Mueller’s investigation to continue. He only promised to make judgments “based solely on the law.” And on his view of the law, the President cannot commit obstruction of justice when exercising his ordinary constitutional responsibilities.

On the bright side, Barr acknowledges that a President can obstruct justice by tampering with witnesses or destroying evidence. In the months since Barr wrote the memo, President Trump has arguably done just this by dangling a pardon before Paul Manafort and publicly praising witnesses for not cooperating with Mueller’s investigation. If Mueller is pursuing this angle, Barr’s memo might ultimately be used to support the case that Trump obstructed justice. Senators skeptical of Barr’s memo should not overlook this silver lining and would do well to get Barr on the record endorsing it.

There is one final wrinkle, and it is a doozy. If Barr is not confirmed, that would leave Acting Attorney General Matthew Whitaker—a political loyalist of far more slender credentials—in charge of the Justice Department. This puts Mueller’s Senate defenders between a rock and hard place. Anyone who cares about the special counsel investigation should think long and hard before confirming a nominee of such apparently extreme—though sincerely held—views. But the alternative is almost certainly worse.

If Barr’s confirmation were not already a foregone conclusion, this would probably seal the deal. Still, it is not the outcome alone that matters. As Watergate demonstrates, the commitments that Barr makes on his way to confirmation will have lasting consequences. His prepared statement is a start, but Senators should demand more.

Andrew Coan is a professor of law at the University of Arizona and author of Prosecuting the President: How Special Prosecutors Hold Presidents Accountable and Protect the Rule of Law

Versus Trump: An Impeachment Primer...

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Gotcha! No impeachment dessert until you eat your immigration broccoli. On this week’s Versus Trump, Easha (back from parental leave!) and Charlie (just starting parental leave) discuss two immigration losses for the Trump administration. The first concerns Trump’s attempts to roll back court-ordered protections for migrant children; the second, Trump’s attempt to subject more immigrants to expedited removal. Listen now!

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Although Trump isn't deliberately using each new scandal to distract from the last one, the phenomenon is nonetheless maddening. It's like a game of Bizarro World Whack-a-mole in which each time you whack a mole another hammer emerges that somehow enables the same mole to escape.

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On this week's episode of Versus Trump, Charlie and Jason discuss the legal stakes of the fight over what Trump said to the President of Ukraine and the related whistleblower complaint. A lot happened between when they recorded the episode and when it's being posted, but we still think it's a useful primer on the legal questions in this dispute. Listen now!

Charlie Gerstein

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