A Qualified Defense of the Barr Memo: Part I

Daniel Hemel and Eric Posner have harshly criticized William Barr’s memo on Special Counsel Robert Mueller’s obstruction of justice theory. They say (in the New York Times) that the memo “seriously damages [Barr’s] credibility and raises questions about his fitness for the Justice Department’s top position” and (later, on Lawfare) that the memo is “poorly reasoned.”

In my view, Hemel and Posner’s arguments don’t support these conclusions. I’m not going to spend much time on the proper way to parse the words of the obstruction statute, as Barr and the coauthors do. I agree with Marty Lederman that much of this fine-grained analysis is beside the point because Mueller is almost certainly not considering asking a grand jury to indict President Trump for a violation of a criminal law on obstruction of justice. I instead want to focus on a few broader principles of constitutional law and statutory interpretation in Barr’s memo and in Hemel and Posner’s responses. My primary aim is to show that Barr’s views, far from crazy, have significant support in Supreme Court case law and executive branch precedent, and that the real significance of the Barr memorandum may be its possible use in support of the impeachment of President Trump. A later post will address other issues in the Barr memorandum.

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Hemel and Posner say that Barr’s memo shows he will “do the president’s bidding,” and that “he has already made up his mind about the investigation and wanted to make sure that President Trump knew it.”

These conclusions cannot be reconciled with Barr’s statement up front that he is “in the dark about many facts,” and with his acknowledgment that the President of the United States can, in a number of factual circumstances, commit obstruction of justice. As Barr says:

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion—such as his complete authority to start or stop a law enforcement proceeding—does not involve commission of any of these inherently wrongful, subversive acts.

This is a broad statement about presidential exposure to criminal obstruction of justice. As Marcy Wheeler has noted, and as I explain further below, this statement holds potential peril for Trump. Wheeler thinks that Trump has suborned false statements from former national security adviser Michael Flynn that, under Barr’s theory, counts as obstruction of justice. She may be right—the answer is not yet clear. The point for now is that Barr’s memo in no way rules out this conclusion and, indeed, invites it, depending on the facts—which Barr concedes he does not know. This shows that Barr has not, as Hemel and Posner allege, “made up his mind about the investigation.”

Barr’s memo definitely does not rule out the possibility that Trump obstructed justice. Rather, it argues against a particular theory of obstruction that Barr believes Mueller is pursuing. That theory is that Trump is being pursued for obstruction of justice under 18 U.S.C. §1512(c)(2) not on the basis of a “wrongful act of evident impairment,” but rather simply because he expressed “hope” that former FBI director James Comey could eventually “let ... go” of the FBI’s investigation of Flynn and because he fired Comey. Subsection (c) of the statute provides:

(c) Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].

Barr clearly states the theory of subsection (c)(2) that is the target of his analysis as the following: “[S]imply by exercising his Constitutional discretion in a facially-lawful way—for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power—a President can be accused of committing a crime based solely on his subjective state of mind.” This theory, and only this theory, is what Barr is worried about.

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Barr argues that this theory cannot render Trump criminally liable under subsection (c)(2) because “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives” (my emphasis at end). The predicate here—a possible conflict with presidential prerogatives—is crucial to the application of the plain-statement rule, as Barr makes clear. Barr does not argue that every application of (c)(2) to the president would implicate the plain-statement rule. Rather, he limits his argument to applications of the statute to “facially-lawful exercises” of the president’s constitutional discretion.

Hemel and Posner never respond to this argument directly. Rather, their central contention is that if Barr is right about the plain-statement rule’s application to the obstruction statute, “then the president would be shielded from a host of uncontroversial laws, including the federal bribery statute, which does not mention the president.” The authors thus treat Barr’s argument as a type of reductio ad absurdum, as if application of the plain-statement rule to exclude statutes from applying to the president in certain circumstances would be absurd or unacceptable.

Yet far from being absurd or unacceptable or even unusual, the Barr argument is commonplace. A 1995 Office of Legal Counsel (OLC) opinion written by then-Assistant Attorney General Walter Dellinger to Bill Clinton’s White House counsel correctly stated that the plain-statement requirement that Barr invoked “has been applied frequently by the Supreme Court as well as the executive branch with respect to statutes that might otherwise be susceptible to an application that would affect the president’s constitutional prerogatives, were one to ignore the constitutional context.”

The Dellinger opinion cited six Supreme Court decisions (Franklin v. Massachusetts, Public Citizen v. Department of Justice, Sale v. Haitian Centers Council, Inc., Nixon v. Fitzgerald, French v. Weeks and Tenney v. Brandhove) that invoked a version of the plain-statement canon. It also cited nearly a half-dozen executive branch opinions invoking the canon to conclude that several statutes—the Age Discrimination in Employment Act, the criminal contempt of Congress statute, the Anti-Lobbying Act, a conflict-of-interest statute, and more—did not apply to the president when they touched on presidential prerogatives. And those were just the judicial and executive branch opinions up through 1995. There have been many more since then. What Hemel and Posner see as a shocking implication of Barr’s argument is not shocking at all. It is, rather, an implication that has been embraced by the Supreme Court and the executive branch for decades.

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But what about the bribery statute that Hemel and Posner make such a fuss about? Barr’s memo did not mention the statute. Yet Hemel and Posner say (without ever exactly explaining why) that Barr’s argument implies that the bribery statute does not apply to the president. They think this is an absurd conclusion and list a parade of presidential bribery horribles. And they add (in response to an argument by Andy McCarthy) that “the Department of Justice has construed the federal bribery statute as applying to the President even though it does not expressly name the President.”

But the bribery statute does not have the import that Hemel and Posner suggest. The quoted OLC position on the bribery statute’s application to the president comes from the 1995 Dellinger OLC opinion, which is a full-throated defense of the presidential plain-statement rule that Barr embraces and that Hemel and Posner think is unacceptable. Also, OLC’s conclusion about the bribery statute’s application to the president was premised on its view that the bribery statute “raises no separation of powers questions were it to be applied to the President” (my emphasis) because it “confers no power in the President to receive bribes” and “specifically forbids any increase in the President’s compensation for his service while he is in office, which is what a bribe would function to do.”

Barr’s argument is not affected by this analysis. His argument is that some applications of the very different obstruction statute do raise separation of powers questions. Hemel and Posner thus invoke a statutory example where OLC says the plain-statement rule does not apply (bribery) to refute Barr’s argument about a different statute (obstruction) that, Barr says, does implicate the canon. Once again, they do not engage Barr’s argument.

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Perhaps the hardest problem in this area of law is to figure out when a presidential action is burdened by a statute in a way that implicates the plain-statement rule. One reason why this is hard is that the executive branch and the Supreme Court have used slightly but importantly different formulations for the triggering criteria for the plain-statement rule. Barr says the canon is triggered by “facially-lawful” exercises of the president’s constitutional discretion. Dellinger said in his 1995 opinion that the canon applies if application of the statute “would involve a possible conflict with the President’s constitutional prerogatives” or “would arguably limit the President’s constitutional role” or “would raise a serious question under the separation of powers.” (It is unclear to me which among Dellinger’s various formulations and Barr’s formulation is most favorable to the president. Perhaps it doesn’t matter, since Barr relies heavily on the Dellinger opinion and clearly means to apply the same canon.) There are other formulations in OLC opinions and Supreme Court decisions. These different formulations make it hard to know the canon’s precise scope.

A second and related reason for uncertainty in this area is that the same presidential action can be construed—depending on the facts, and especially facts about presidential motive—as a facially lawful constitutional prerogative of the president and as an action that lies beyond the president’s constitutional discretion or is facially unlawful. In their op-ed and especially in their Lawfare follow-up, Hemel and Posner pose a number of challenging hypotheticals that turn on this point. For example, they ask whether Bill Clinton would have obstructed justice on Barr’s theory if he offered Monica Lewinsky the ambassadorship to Switzerland in exchange for her lying under oath. This is a problem, they imply, because the same act is both a facially lawful presidential prerogative (appointing ambassadors), which Barr says is lawful, and a knowing subornation of perjury, which Barr says is obstruction.

I am confident that Barr has a good answer to this hypothetical, probably along the lines that it involves a facially unlawful act (suborning perjury), which the Mueller theory he was addressing did not. Indeed, the distinction is pretty clear in the long paragraph quoted above where Barr explains when and why the president is sometimes subject to the obstruction statute. (For a good, concise explanation of this distinction that is consonant with Barr’s memorandum, see this piece by Andy Grewal.) Hemel and Posner’s hypotheticals raise good questions about this whole body of constitutional law and statutory interpretation. But any difficulties posed by their hypotheticals do not detract from the fact that, contrary to their strong implication, the law that Barr was applying is clearly settled and his argument was not in any way radical.

Moreover, there are difficult hypotheticals on the other side of the argument. Hemel and Posner emphasize that if acts that can be both facially lawful and evidence-impairing are immunized, the president might be able to get away with obstructing justice. But as Barr emphasizes, if the president is subject to scrutiny for facially lawful exercises of constitutional prerogative that, depending on motivation alone, might also be construed as obstruction of justice, then core discretionary executive power is at risk of being regulated and thus chilled. Barr has a long discussion of this point, and a number of hoary hypotheticals, on pages 15 and 16 of his memorandum that I will not summarize here. His bottom line is as follows:

The prospect of criminal prosecution based solely on the President’s state of mind, coupled with the indefinite standards of ‘improper motive’ and ‘obstruction,’ would cast a pall over a wide range of Executive decision-making, chill the exercise of discretion, and expose to intrusive and free-ranging examination the President’s (or his subordinate’s) subjective state of mind in exercising that discretion.

As the competing hypotheticals imply, the application of the plain-statement rule to the exercise of facially lawful presidential actions raises very hard questions about how to reconcile presidential prerogatives with principles of presidential accountability. For the most part, the Supreme Court and the executive branch have come down on the side of protecting presidential prerogatives (i) when they are burdened in any plausible way and (ii) when Congress has not otherwise spoken plainly to regulate those prerogatives (as, for example, Congress did in the independent counsel statute at issue in Morrison v. Olson, but did not do in the obstruction of justice statute). There are good justifications for this important separation of powers rule. Congress should (ideally at least) engage in focused deliberation and express action before it burdens presidential powers, and courts should not apply statutes to burden the presidency absent evidence that Congress actually deliberated on the issue and applied the statute to the president.

In sum, Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”