Why Barr Was Wrong
I thought BuzzFeed’s explosive story on Pinocchio-in-Chief and Michael Cohen’s congressional testimony made obsolete a piece I was preparing on how Attorney General-designate William Barr’s letter to the Justice Department about obstruction of justice was wrong. After all, Barr testified that directing someone to lie to Congress was obstruction of justice. No debate there. But the controversy over the story’s accuracy prompted me to finish the piece.
Not that I doubt the truth of the piece. BuzzFeed has a pretty good track record on Trump and Moscow. While Trump called the dossier BuzzFeed published discredited, in fact much of it has been corroborated. Some material is uncertain but plausible — as is the current story. We know that Trump directed Cohen to make the hush money payments. We know that Cohen asked Trump for permission to breathe, go to the rest room, and everything else while he was still close to Trump. And we know Trump went to great lengths to hide his negotiations over the Moscow Trump Tower. So it would hardly be a surprise if he told Cohen to lie to Congress.
But on to obstruction of justice.
I heard one commentator describe Barr’s performance at his confirmation hearing as judicious. I did not hear anyone say it was disingenuous. But it was. Barr said his letter last summer to the Justice Department addressed a narrow issue when he argued that the president could not be guilty of obstruction of justice for firing former FBI Director James Comey. Barr said he did not address the core of the Russian meddling probe. That is true as far as it goes. Barr focused on one action — firing Comey — and only one of many obstruction-of-justice provisions in the criminal code.
But to make his legal point, Barr made a legal argument that was hardly narrow. In fact it was breathless in its scope. He argued that a president has unfettered authority over the executive branch, including law enforcement, an executive function. That means he can fire anyone and decide whether or not to bring cases — even those in which he has a direct interest. Barr also contended that the statute barring “corruptly” impeding the administration of justice was unconstitutionally vague. And, Barr argued, presidential executive actions are not reviewable by another branch of government because such a review would encroach on executive-branch authority. This argument led Barr to conclude that since firing Comey was clearly within the scope of Trump’s executive authority, it could not amount to obstruction of justice. He said the only recourse against a president for such dubious behavior is impeachment or an election.
Then I reread United States v. Nixon, which undercuts Barr’s sweeping argument. After that, I read an article by two University of Chicago law professors, Daniel Jacob Hemel and Eric A. Posner, in California Law Review elaborating on why Barr’s argument is wrong. They wrote before Barr’s letter became public, but they addressed comprehensively the question of whether a president could be guilty of obstruction of justice. And in a fascinating historical footnote citing conservative legal icon Robert Bork, they made a compelling argument that a sitting president can be indicted.
I want to address first Barr’s point that the president can do whatever he wants and there is no legal recourse. The Nixon case has some differences but some important similarities, which Barr ignored. The major difference is that the Nixon case involved a subpoena for Oval Office tapes. The similarity is that the White House argued that this was an intra-executive branch dispute between the special prosecutor and Nixon — something solely within the president’s jurisdiction — and not something subject to court review. If Barr were right that the president has unfettered authority to manage the executive branch, including law enforcement, Nixon would have won the case. He lost.
Barr cited the Nixon case for the proposition that a president’s discretion in law enforcement is absolute, but Barr ignored that the High Court also said that a “mere assertion of a claim of an ‘intra-branch dispute,’ without more” isn’t enough to preclude judicial review. The independent special prosecutor and the president were at odds over a concrete issue, and that’s just the sort of thing courts review. What’s more, the court said, “since the matter is one arising in the regular course of a federal criminal prosecution, it is within the traditional scope of Art. III power” — that is, the judicial branch’s authority. Since Marbury V. Madison in 1803, it has been the judicial branch’s role to decide what the law is, not the executive branch’s. Since so much of what Mueller is doing already is a court proceeding, any dispute between Mueller and Trump would pit the court’s authority against the president’s. We know who has won such battles in the past: Harry Truman (steel industry seizure), Richard Nixon (the tapes), and Bill Clinton (testifying in a civil suit) all lost.
Hemel and Posner show other limits on presidential authority over the executive branch. The Senate must confirm many appointees, potentially blocking the President from putting in place people who would carry out his policies. Congress defines a lot of executive offices, reducing the President’s discretion to reorganize them. Congress can withhold funds from the President. Civil service laws restrict the White House’s ability to punish or fire many executive branch subordinates. Many positions have the protection of laws that limit firing except for cause. The President can’t reward employees with bonuses. And Congress can go to court to get executive branch officials to enforce laws and regulations.
Nor is there merit to Barr’s contention that corruptly is an unconstitutionally vague concept. The professors argued that statutes and cases lay out what corruptly influencing a proceeding means. They explain that a president obstructs justice when the motive for intervening in an investigation is improper. They have a three P test for that: to further personal, pecuniary, or partisan interests, rather than to advance the public good.
This requires several layers of analysis, though. First, was the reason for the action to advance the public good? Trump could have argued that he followed the logical conclusion of the Rosenstein memo about Comey, which correctly criticized Comey for violating Justice Department protocols on several occasions. But Trump said that he had decided to fire Comey before receiving the memo. He told Lester Holt and some Russians that he did it because of the Russia investigation. There went that defense.
But cases can get more complicated. In some instances there might be mixed motives. A candidate might campaign on a policy of not arresting people with small amounts of marijuana because that’s a poor allocation of limited law-enforcement resources. In office, let’s assume the President pushes such a policy change. Then a nephew gets arrested for possession of a small amount of weed, and he would get off under the new policy. The question is whether the President would have pushed for this if the nephew hadn’t been arrested. The answer is yes, so the primary goal is to advance the public good. This would not be obstruction of justice.
In the George W. Bush administration, the Justice Department launched an investigation of the firing of nine U.S. attorneys. They included David Inglesias in New Mexico, who had failed to bring charges against a New Mexico Democratic politician despite pressure from state Republicans to do so. A Special Counsel whom the Republican attorney general appointed didn’t bring charges. But the professors note the probe showed the department thought that the exercise of the President’s clear authority could lead to charges if the purpose was improper, in this case partisanship.
Finally, there is the question of whether a sitting president can be indicted. You hear cited all the time about an Office of Legal Counsel opinion that the answer is no. What you never hear about is a memo Bork wrote in 1973 when he was solicitor general. It concerned whether Vice President Spiro Agnew was immune from criminal prosecution. He noted immunity members of Congress have for anything they say in speech or debate on the floor of the House or Senate. And they can’t be arrested except for treason or breach of the peace when traveling to and from a legislative session. Bork wrote that since “the Framers know how to, and did, spell out an immunity, the natural inference is that no immunity exists where none is mentioned.” And there is no immunity for a president.
The Constitution makes clear that impeachment and conviction do not preclude indictment, trial, and punishment. It does not say whether the indictment can precede impeachment, be simultaneous, or must follow it. The possibility that statutes of limitation could lapse during lengthy impeachment proceedings and a Senate trial suggests that an indictment can come while the president is in office. Any other interpretation would negate the clear dictate of the Constitution. The combination of common sense and Bork’s interpretation (I don’t mean at all that his interpretation lacks common sense) suggests the Office of Legal Counsel’s interpretation is not the inevitable outcome in court.
The legal possibilities may differ from the political possibilities, of course. As I have written elsewhere, I would not support impeachment in the absence of a significant possibility that the Senate would convict. The likely charges are far more central to a president’s fitness to serve than the Lewinsky scandal’s charges. If Mueller’s report is as damaging as I suspect it will be to Trump, I would hope Senate GOP leaders would go to him and tell him it is in his interest to step down. Telling him it is in the country’s interest would not work. He neither cares about nor understands that concept. In his interest? Yes. Rather than face a stinging rebuke in Congress or an electoral debacle, Trump would declare mission accomplished and go to Mar-a-Lago. There he could lower his handicap — and mercifully remove the country’s.
