Earlier this year, Bill Barr sent a lengthy memo to the DOJ explaining why Trump shouldn't be investigated for obstruction. That alone should disqualify him from serving as attorney general.
The Wall Street Journal reported last night that William Barr, Trump's pick for Attorney General, sent an unsolicited 20-page memo criticizing the Russia investigation to the Department of Justice back in June. It's a startling case of overreach and one that should disqualify him from becoming attorney general.
The memo itself is unsurprising, given the source. Barr doesn't believe Trump can be investigated for obstruction; he thinks the president should have full authority to fire whoever he wants for whatever he wants. Further, Barr argues, unless collusion can be proved first, Trump can't be on the hook for obstruction. From a purely legal standpoint, Barr is just pushing a theory he's pushed for 30 years: that the President should largely be able to do whatever he wants.
What's startling here is that Barr thought it appropriate, as a past attorney general, to send a letter leaning on Rod Rosenstein, who considers Barr a role model, to try to get him to kill a duly-authorized investigation. The memo is also surreal because Barr begins by freely admitting that he doesn't know all the facts but then proceeds to opine about the law anyway.
Senator Chuck Schumer pointed out that Barr's views are "deeply misguided" and constituted an "unproved attack." With that, says Schumer, Barr is "unquestionably disqualifie[d]" to serve as attorney general. At the very least, the matter should be robustly addressed during Barr's confirmation hearings, as the existence of the memo should worry both Democrats and Republicans.
It's unclear whether Barr shared this memo directly with Trump, giving Trump a potential strategy to follow, and serving as a sort of audition for the job. Barr had already spent a portion of 2017 writing op-eds calling for the investigation of Hillary Clinton instead of Trump. Trump definitely took notice, offering Barr a job as his personal attorney in the Russia probe.
In any normal setting, all of this would result in Barr's nomination being withdrawn, but these are not normal times.
It will probably take a couple months for Barr to get confirmed, which means that Matthew Whitaker remains acting attorney general. There was a question as to whether it was appropriate for Whitaker to oversee the Russia investigation, given his assertions that the investigation is a witch hunt. But Whitaker didn't bother to get a formal ruling about whether it would be a conflict. A senior DOJ ethics official did tell Whitaker that he should recuse, but senior appointed officials then told him he didn't need to do so. While Whitaker is on his way out the door, there's still enough time for him to kill the investigation or starve it of vital resources and personnel.
Trump's acting attorney general and incoming attorney general seem to exist for one key purpose: protecting Trump from an investigation into the depths of his collusion and obstruction. And with a GOP-majority Senate, there's no reason to think Barr won't be confirmed and he get to work dismantling all that Mueller has carefully built.
Published with permission of The American Independent Foundation.