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Here's why Trump's pick for attorney general doesn't think he should be investigated for obstruction of justice

"If embraced by the Department, this theory would have potentially disastrous implications not just for the presidency, but for the executive branch as a whole and for the department in particular."

by Greg Walters
Dec 20 2018, 4:24pm

President Donald Trump’s new pick for attorney general wrote a memo blasting the reported investigation of Trump for obstructing justice as “fatally misconceived.”

Trump’s nominee, William Barr, who served as George H.W. Bush’s attorney general, wrote an unsolicited, 19-page letter to senior Department of Justice officials last summer that laid out his concerns about press reports indicating special counsel Robert Mueller is examining whether Trump obstructed justice by firing then-FBI director James Comey.

Comey has claimed that before Trump fired him, the president asked him to drop an investigation into Trump’s first national security adviser, Michael Flynn, who later pleaded guilty to lying to FBI agents about his contacts with Russians.

Barr’s memo, sent on June 8 to Deputy Attorney General Rod Rosenstein and head of the Justice Department’s Office of Legal Counsel, Steven Engel, warned that Mueller’s obstruction probe might harm the institution of the presidency.

Mueller should not be allowed to demand that Trump submit to questioning about obstruction of justice, Barr wrote.

The question of obstruction of justice, he argued, shouldn’t be applied in a case where the president uses a power granted to him in the constitution — such as firing an executive branch official, exercising his “prosecutorial discretion to give direction on a case,” or pardoning someone convicted in the probe.

“As I understand it, his [Mueller’s] 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.”

Barr warned that if a president can be busted for obstructing justice, all legal hell might break loose. Any public official — from the attorney general himself to a lowly prosecutor — who makes decisions about a legal case might face legal jeopardy next if such a precedent is set, he wrote.

“If embraced by the Department, this theory would have potentially disastrous implications not just for the presidency, but for the executive branch as a whole and for the department in particular,” Barr wrote. “Simply by giving direction on a case, or class of cases, an official opens himself to the charge that he has acted with an ‘improper’ motive and thus becomes subject to a criminal investigation.”

Barr is expected to become Trump’s official nominee for attorney general next month. If he’s confirmed by the Senate, he’ll oversee Mueller’s sprawling investigation into Trump and his administration’s links to Russia.

Read the full memo here:

Cover image: President Donald Trump announces that he is nominating William Barr, attorney general under President George H.W. Bush, as his Attorney General, on the South Lawn of the White House, Friday, Dec. 7, 2018, in Washington. (AP Photo/Evan Vucci)

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