The Barr Memo: Why Reasoned Discourse Should Not Be A Bar To Confirmation

Below is my column in Fox.com on the Barr memorandum that has garnered so much attention. As I noted, I do not agree with the ultimate conclusion of the research that the obstruction provision could not be the foundation for a subpoena to require President Donald Trump to answer questions. However, the memo is a well-reasoned and thoughtful treatment of the issue. Moreover, I agree with Barr (as I have stated since 2017) that critics were stretching obstruction provisions to the breaking point in their blind effort to turn every act into a crime. Indeed, while I do not necessary view the memo as a strong case against obstruction, it is part of a strong case for confirmation.

Here is the column:

The Senate confirmation of William Barr to become attorney general should be an easy matter, even in Washington. After all, he previously held the position with distinction.

Unfortunately, the U.S. government may be the only employer where prior experience and prior insights are a liability. The fact that Barr is a brilliant lawyer and previously served as President George H.W. Bush’s attorney general from 1991 to 1993 seems to count for little.

With brilliant flora and exotic fauna, Orlando is America’s most untamed secret. Save time and money when you book air + hotel with JetBlue Vacations.

Opponents of President Trump’s nomination of Barr to become attorney general are seizing on a memo Barr sent June 8 to Justice Department officials.

In the memo, Barr expresses his opinion on some legal aspects of Special Counsel Robert Mueller’s investigation of Russia’s interference in the 2016 U.S. presidential election and possible collusion between Russia and the Trump presidential campaign. The president has repeatedly said “there was no collusion.”

Specifically, Barr’s memo discusses allegations that President Trump may have obstructed justice by firing FBI Director James Comey to stop an investigation of Trump-Russia cooperation to help Trump win the presidential election.

Barr’s memo went to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel. The memo identifies what Barr thought was a potentially serious flaw in the use of the most likely federal provision on obstruction of justice that could be used to accuse President Trump of obstructing the Russia probe.

If there was an essay requirement on the job application to become attorney general, Barr’s memo would get him the position. The 19-page single-spaced memo is an extraordinary and insightful analysis of a little-explored part of our criminal code.

Instead, Barr’s willingness to share his views with top Justice Department officials is now being portrayed by opponents of his nomination as somehow disqualifying or a conflict of interest that should prevent him from becoming attorney general again.

“Mr. Barr’s memo reveals that he is fatally conflicted from being able to oversee the Special Counsel’s investigation and he should not be nominated to be attorney general,” Senate Minority Leader Chuck Schumer, D-N.Y., said in a statement. “Mr. Barr believes presidents in general – and more frighteningly, President Trump, who has shown less respect for the rule of law than any president – are above the law.”

Critics are correct about one thing. Everyone should read the memo, first reported by The Wall Street Journal. However, far from being a disqualifying factor, the memo is precisely why Barr should be confirmed.

The memo is dispassionate, detailed and insightful. It shows precisely why Barr is widely viewed as a lawyer’s lawyer. Barr thrives on the intricacies of the law. There is nothing casual in legal analysis for Barr, which is anchored to the express language and authority for a given act.

The memo concerns a problem that some of us raised back in 2017 about obstruction allegations concerning President Trump’s firing of Comey as FBI director.

At the time, there was no relevant formal proceeding or grand jury for Trump to obstruct. Mueller would need to allege that Trump’s firing of Comey was designed to obstruct an anticipated proceeding – a very difficult case to make in the best of cases.

Yet President Trump has (at least so far) not been accused of destroying or tampering with evidence – making a case of obstruction against him virtually unprecedented under the law.

The law against obstruction would have to be stretched as it never has been before to show that the president tried to “obstruct, influence or impede” a legal proceeding that had not even begun at the time.

Some of us have noted that there were ample and independent reasons for firing Comey, who was widely denounced by former and current Justice Department officials. Comey came under fire for violating core policies and protocols of the Justice Department regarding the FBI investigation of the scandal surrounding the emails of Democratic presidential candidate and former Secretary of State Hillary Clinton.

After being fired by President Trump, Comey became the best witness against himself. He admitted to removing FBI memos and having a friend leak the contents to the media. He recently admitted to ignoring Justice Department protocols in sending agents to the office of then-National Security Adviser Michael Flynn without informing either then-Acting Attorney General Sally Yates or then-White House Counsel Don McGahn.

Barr, however, focused on another problem involving allegations of obstruction of justice against President Trump. Mueller wants to use the obstruction provision to demand an interview with Trump to learn the president’s “state of mind” when he fired Comey.

Barr questions the statutory basis for Mueller’s theory that the president may have obstructed justice by firing Comey. Barr warns in his memo that the Mueller theory could establish an “unbounded interpretation” where any action influencing a future proceeding could be treated as a potential crime.

In addition, Barr addresses how the Mueller theory would influence future prosecutions for obstruction of justice against executive branch officials – not just President Trump.

If the Mueller theory of obstruction is upheld, Barr argues, it would allow for interrogations of executive branch officials on their motivations in exercising a broad range of discretionary powers.

Barr’s critics ignore that he does not criticize the Mueller investigation as a whole, and ignore this important statement from Barr early in his memo:

“Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function,” Barr states in the memo. “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.”

Barr’s memo continues: “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.”

With the above comments, Barr’s memo advances a strong and compelling argument in favor of charging presidents for conduct in office, including the misuse of official powers to destroy evidence or tamper with witnesses.

To say that the Barr memo gives presidents a blank check to do as they please and supports the view that “presidents in general … are above the law,” as Schumer claimed, is a gross mischaracterization of Barr’s memo.

One can disagree with aspects of Barr’s analysis, as I do. I believe that a court could legitimately uphold a subpoena to compel Trump to testify on obstruction.

However, Barr impressively marshals dozens of court decisions, statutory provisions, and Justice Department Office of Legal Counsel opinions to lay out the problem with Mueller’s interpretation of the law regarding obstruction of justice.

More importantly, the Barr memo does not suggest that Barr would interfere with Mueller’s investigation.

First, if the legal issue of Comey’s firing was raised on the extension of the obstruction provision, it would not be unilaterally answered by Barr but addressed by a wide circle of experts, including Rosenstein, the Office of Legal Counsel and even the Justice Department’s solicitor general.

Just because an attorney general may be skeptical of an interpretation does not mean that the Justice Department will not advance that interpretation, particularly if made by a special counsel.

Mueller, however, will have to make the case that he is making a defensible and reasonable interpretation of the obstruction of justice statute. All prosecutors must make such cases on novel interpretations and show that they are consistent with other positions taken by the Justice Department.

Second, the problems associated with the obstruction theory on Comey’s firing are shared by a wide range of experts. Mueller is unlikely to peg a prosecution of Trump on such an anemic and untested theory.

Finally, on a practical level, there is every indication that the Mueller investigation is wrapping up. Barr might have a role in deciding what to do with the report or reports issued by the special counsel, but it is extremely unlikely that he would have a material impact on Mueller’s obstruction investigation.

Barr is first and foremost an institutionalist. He is the least likely person to shut down the Mueller investigation unilaterally.

What is clear from Barr’s memo is that his primary concern is for the Justice Department, not for President Trump. Barr clearly acknowledges that the president could be charged on a variety of other grounds if supported by evidence.

Barr warns that “in an increasingly partisan environment, these concerns are by no means trivial. For decades, the (Justice) Department has been routinely attacked both for its failure to pursue certain matters and for its decisions to move forward on others.”

In other words, particularly in an age of rage, a crime without limiting principles can easily envelop of the Justice Department and the government as a whole. It is the type of problem that would not concern a partisan, but does concern an attorney general. That is what Barr was and – if there is any sense left in Washington – that is what he will be again in 2019.

Jonathan Turley is the Shapiro professor of public Iiterest law at George Washington University and a practicing criminal defense attorney. He represented William Barr with other former Attorneys General during the Clinton impeachment.

60 thoughts on “The Barr Memo: Why Reasoned Discourse Should Not Be A Bar To Confirmation”

  1. I would like to present an additional argument in favor of William Barr for his upcoming confirmation for Attorney General.

    When one President leaves the White House after his term in office, it is quite common that said President offers to provide moral support and assistance to the incoming President in times of trouble and contemplation over major issues. This is a tradition that dates back to the early years of our republic.

    I see the action of Barr in sending the referenced memo to the current heads of the Justice Department as a similar act of selflessness. He didn’t have to do it, but sometimes the words of wisdom from someone with the knowledge and skill set to address these issues is important. His action was not meant to make a decision; instead, it was to help inform them of issues to consider in making the decision for how the case should be handled.

    In court cases, it is common for parties not directly involved in the proceedings to file amicus curae briefs with the court as a way of presenting additional issues that may be relevant to the case at hand. I believe my translation is correct in saying, “friend of the court” briefs. Judges are not required to consider everything presented in these briefs, and almost never cite them in their verdicts, but they help judges see the case from the perspective of a dispassionate but interested observer. It is with that same spirit that this memo should be evaluated.

    If the partisans in Washington are going to disqualify a person from service to the President of the United States and the nation just because the individual has an opinion, then we are sowing the seeds of disaster. We should be encouraging the best and the brightest to help make the nation better. Instead, what we will get will be people who have no idea what their job should be after confirmation. If their decisions are to have the respect of the governed, then their expertise has to be recognized by those they govern. Unless our collective goal is to totally discredit our government.

    I’m not yet ready to take that step.

  2. it will be wonderful with Trump replaces RBG and lives will be honored from conception to natural death. Life is sacred even if Sens K Harris et al celebrate an anti-life shtick

    1. Democrats are Nazis

      “Judicial nominee faces Senate scrutiny over Knights of Columbus membership”

      https://www.catholicnewsagency.com/news/senators-quiz-nominee-about-membership-of-extreme-knights-of-columbus-78683

      “Senators Mazie Hirono (D-HI) and Kamala Harris (D-CA) raised concerns about membership in the Knights of Columbus while the Senate Judiciary Committee reviewed the candidacy of Brian C. Buescher, an Omaha-based lawyer nominated by President Trump to sit on the United States District Court for the District of Nebraska.

      Senators also asked whether belonging to the Catholic charitable organization could prevent judges from hearing cases “fairly and impartially.”

  3. TRUMP CLAIMS HE DIDN’T KNOW ESSENTIAL ENVOY

    Brett McGurk was tasked with coordinating international efforts, from NATO allies to militia groups, in the effort against Islamic State militants in the region.

    But in the midst of his resignation to protest Trump’s sudden decision to pull out about 2,000 troops from Syria, McGurk himself was somehow overlooked by Trump, according to the president.

    “Brett McGurk, who I do not know, was appointed by President Obama in 2015,” Trump said Saturday on Twitter. “Was supposed to leave in February but he just resigned prior to leaving. Grandstander? The Fake News is making such a big deal about this nothing event!”

    It is not clear whether Trump meant he never met McGurk or was otherwise unfamiliar with him. McGurk was scheduled to leave in February, making his instant resignation symbolic.

    But Trump’s assertion raised questions about his awareness of or interest in the intricate policies surrounding one of his cornerstone campaign promises — the defeat of the Islamic State, in which McGurk played a central role in Washington, Baghdad and elsewhere.

    McGurk has been described by current and former officials as tirelessly dedicated and respected by militia commanders and ambassadors alike, and his commanding expertise was sought and deferred to within the U.S. government. His involvement at high levels in government and diplomatic circles signaled a trusted presence in the coalition since his appointment as envoy by Obama.

    His work in the Middle East started under President George W. Bush and spanned three administrations. That experience is perhaps without equal, Derek Chollet, a former U.S. assistant secretary of defense in the Obama administration, told The Post.

    McGurk was a chief architect of Bush’s troop surge in Iraq and had a senior role in negotiating the 2011 U.S. withdrawal from Iraq for Obama. That experience carved out trust with Iraqi leaders, Chollet said, which spurred several postings that eventually lead to the envoy appointment.

    In the Syria campaign, he was the driving force behind the creation of the Syrian Democratic Forces. His tenacity and personal touch in building relationships served the counter-Islamic State effort well, colleagues told The Post.

    McGurk met face-to-face with Kurdish and Arab leaders of the SDF and was a continual presence in Baghdad and Irbil, the capital of the autonomous Kurdish region in northern Iraq, becoming the most recognizable American official in the country at a time when an Islamic State blitz threatened both capitals.

    Edited from: “Very Telling That Trump Didn’t Know His Own Anti-ISIS Point Man, Former Official Says”.

    This evening’s WASHINGTON POST

    1. RE. ABOVE:

      Trump’s dismissive tweet, implied that Brett McGurk was nothing more than some Obama holdover. In reality McGurk was an essential envoy to the Middle East with valuable contacts throughout that region. He was the face of America to our Kurdish allies and widely respected by NATO generals. For Trump to dismiss McGurk as “someone I never met” is aggressively ignorant. But that’s Donald Trump.

      1. In reality McGurk was an essential envoy to the Middle East with valuable contacts throughout that region.

        You’ve never heard of him until day before yesterday, Peter.

        1. Right, Spastic, I didn’t know McGurk. But I’ve read-up on him this weekend.

          McGurk is one of those State Department officials Americans rarely hear of. Yet, McGurk was our man on the ground in Iraq and Syria since George W. During that time McGurk has been the trusted face of America to Iraqi and Kurdish allies. Friends we logically want to keep.

          So when career officials like McGurk resign, all their contacts go. No intelligent president tweets dismissive references. Like, “I didn’t that guy”. What a stupid thing to say! McGurk was representing Trump for almost 2 years!

          By saying, “I didn’t know that guy”, Trump freely admits he never reads reports. Nor would he have the curiosity to ask, “Who ‘is’ our man on the ground?”

          Issues like this, Spastic, are not some Culture Wars skirmish. And if that’s your perspective, you are quite incapable of grasping government. Which is probably a handicap with Libertarians.

          1. State Dept. and Pompeo were likely aware that McGurk was scheduled to leave in mid-Feb., instead of Dec. 31.
            He may have been on extension from April 2018, when some accounts say he was originally scheduled to leave.
            I’m not sure what the material impact will be of McGurk departing 6 weeks earlier than schedule.
            A cynical take is that the resignation in protest and leaving 6 weeks early will jack up his fees for speeches by a factor of 10.

            1. Tom, McGurk’s departure coincides with Mattis’ and Kelly’s on top of Niki Haley’s. Those were Trump’s best people! And now the government is shutting down. Does someone have to draw you a picture to illustrate how bad this is???

              As I was saying to Spastic, Trump supporters have this knee-jerk reaction where everything is seen from a Culture Wars perspective. While the disaster unfolding with Trump somehow escapes them. You’re too busy asking, “What about Hillary?”, to see Trump’s implosion.

              This weekend we learned Trump wants to fire Jerome Powell, his pick for Federal Reserve Chairman. Trump doesn’t understand these people don’t take loyalty oaths to ‘him’. It’s an aspect of the presidency Trump can’t possibly understand.

              A government shutdown, a trade war with China, a stock market in free-fall, departures of key personnel, a special counsel probe and a separate investigation regarding hush payments, plus a lawsuit over business conflicts unrelated to an investigation regarding the Trump Foundation.

              I can’t remember when a president closed his second year with so much going against him. So when commenters like Tom Nash dismiss McGurk is some grandstander seeking higher speaking fees, it sounds like Nash inhabits a bubble that filters out anything Trump negative.

              1. “I can’t remember when a president closed his second year with so much going against him.”
                ****************
                Your ignorance of US history is stupefying – make that stupidifying. Three come to mind and a little research would probably field a dozen.

                1. Educate me, Mespo, ‘when’ was the last time a president had so much going against him at the close of his second year?

                  1. ha! start right at the beginning peter. not a meltdown, not an implosion, just assorted news both good and bad.

                    it’s always a difficult job and we have been lucky there have been so many capable men to step forward for POTUS including Donald Trump

            2. Does somebody need to show you a calender, Peter?
              My comment was about McGurk, and his resignation 6 weeks ahead of his scheduled departure.
              Would the shrill all-capitalized headlines from Hollywood Hill’s Headline News Network
              have gone into full panic mode had McGurk left in mid-Feb. instead if Dec. 31?

                1. Tom, McGurk first filed his resignation ‘before’ Mattis resigned. And that was ‘before’ Trump rashly decided to bail on the Kurds. The dynamics are quite different now.

        1. Thank you PH, PM, Messrs Nash & mespo etc for educating me on Brett McGurk and his extraordinary contributions to our war — and peace — efforts in that troubled part of the world. One theme that runs throughout point and counter-point is that McGurk was a talented and dedicated public servant, skilled in the intricate (perhaps impossible) mission of coordinating governmental and non-state allies in the fight to defeat ISIS. To have have served in that role for 3 successive presidential administrations makes his accomplishments that more extraordinary.

    2. militia is who in syria? al nusra front? a bunch of jihaadists and we would be lucky if Assad wiped them out by any means necessary

      1. This is the site, I think.

        Eagle One to Wanta

        eagleonetowanta.com/

        “Gibby Media Group , Inc is producing a feature documentary film entitled “Eagle One to Wanta”. It is the compelling story about President Reagan, and how he brought about the fall of the Soviet Union and ended the Cold War without firing a shot. President Reagan and his secret agent, Ambassador Lee Emil Wanta, masterminded a creative way to financially take down the economy of the Soviet Union( Evil Empire) and put together and negotiated an agreement with Secretary General Mikhail Gorbachev. As a result the Russian Federation was born and future generations throughout the entire world have enjoyed more safety from a nuclear holocaust because of this effort. Working directly under President Reagan as a private citizen, there is a man named Ambassador Lee Wanta. Lee was mandated by President Reagan under the Totten Doctrine [92 U.S. 105, 107 (1875), National Security Decision – Directive Number 166, dated March 27, 1985, inter alia] as a secret agent to be in charge of this effort. In this process Lee Wanta did amass trillions of dollars that were designated to go back to the American people by President Reagan. In his effort to carry out his mandate, Lee Wanta was imprisoned and the monetary funds that were his to distribute as planned were stolen or converted illegally by an organization known as the Federal Reserve System and used by them to this day.”

        1. Anon, can’t say I heard that story before, but on another accounting issue Catharan Austin Fitts, former HUD under secretary, & another accounting nut Dr Skidmore.

          Going through the US govt books, there’s the 21 trillion debt many know of, buried in the books was another 21 trillion even Fitts & Skidmore hadn’t heard of & some how it was wiped from the govts books.

          They copied the site records because they both knew how the govt deals with this stuff… And the govt did, they took those pages off the site.

          Fits/Skidmore still have those records available to the public.

  4. Before Sen. Schumer can be believed on his claim that the Barr memo disqualifies Mr. Barr from consideration as Attorney General of the United States, he must first show how the memo itself is not a scholarly and professional review of the relevant law and precedents pertaining to Mr. Mueller’s allegation that “corrupti” obstruction of justice had at any time occurred.

    Barr’s memo demolishes Mueller’s reasoning under any plausible reading of the law cited by that “reasonable man” who is presuimed to be the standard against which laymen’s guilt is measured. The worst Mr. Trump can be accused of being is indiscretion in asking Mr. Comey to reconsider recommending Gen. Flynn’s prosecution.

    Comey’s involvement in the kabuki theater of Hillary Clinton’s investigation for prima facie violation of the Federal laws forbidding migration of confidential Federal correspondence outside Federal firewalls (which she swore she understood and agreed to obey not long after takling office as Secretary of State) would have made him seem the least plausible honest broker in any transaction surrounding a scandal concerning the Trump White House imaginable, had we known what we now do abouit the man who succeeded him as Director of the FBI.

    Having read comment after comment by Charles Schumer during his tenure in the United States Senate, and Richard Barr’s memo, I don’t think Schumer is capable of honestly refuting a single word of Barr’s memo. Some of Schumer’s utterances make me doubt he’d understand how to empty urine from a boot if the necessary instructions were engraved on its sole.

    1. The constitutional requirement for the president to be a “natural born citizen” irrefutably disqualified Obama (as it does Kamala Harris) but Sen. Schumer made no claim in support of the facts and the truth. Sen. Schumer denied the clear words of the English language in the Constitution, the fact of past practices and history that every president before Obama had two citizen-parents at the time of his birth, and the written record of the Founders on the definition of “natural born citizen” they referenced in the Law of Nations, 1758. Sen. Schumer requires only the aspiration and ability to acquire “free stuff” for foreign parasites from actual wealth-creators and American taxpayers as the qualification for democrat candidates at every level.

  5. Professor Turley puts such a pretty face – lipstick on a pig – on a totally contrived “malicious prosecution” and Inquisitive “witch hunt” with the righteously indignant and parasitic democrats as the tip-of-the-spear for the “deep state.”

    American Kafkaesque!

    Ben Franklin, we gave you “…a republic, if you can keep it.”

  6. An old New York Times article:

    Bush Pardons 6 in Iran Affair, Aborting a Weinberger Trial; Prosecutor Assails “Cover-Up”

    http://movies2.nytimes.com/learning/general/onthisday/big/1224.html#article

    Excerpt:

    Throughout the deliberations, Mr. Bush consulted with Attorney General William P. Barr and Brent Scowcroft, the national security adviser, who had sat on a Presidential review panel that examined the affair in early 1987.

    In lengthy Oval Office meetings in the last week, Mr. Bush and his advisers, none of whom offered a sharp dissent, discussed how to balance their desire to grant a pardon with their realization that such an act would almost certainly provoke hostility.

    In the end, Mr. Bush’s advisers decided he could surmount his critics by expressing, as did in his statement, his willingness to make public additional documents about the affair, like his statement to the prosecutors and Mr. Weinberger’s notes.

    1. I think that Bush 41 issued those pardons in the final weeks of his presidency, after he lost the election to Clinton.
      As far as provoking any hostility that would be politically damaging, I doubt that Bush was concerned about that, given that his political career was over.
      Similarly, I don’t think that Bill Clinton worried too much about the blowback from the Mark Rich pardon he granted on his way out the door.
      But if Eric Holder is serious about running in 2020, his role in the Rich pardon is likely to be brought up.

  7. I would emphasize to anyone who comments – READ BARR’S MEMO FIRST. All 19 single-spaced pages of it. I fully agree with Prof. Turley’s assessment of it, but stress again: do not content yourself with columnist’s interpretations. Read the text itself. It should take you less than half an hour. This is a factual and well-researched legal brief, not a political comment.

    1. I agree with you and Prof, Turley – the memo ought to be read into the Congressional Record during the confirmation hearings to shame Sen. Schumer and any other wardheeler who calls it a reason why Mr. Barr shouldn’t be Attorney General once more. I read the memo and was impressed at how clearly and concisely he made his points against Mueller’s reasoning.

  8. It’s quite naive to believe any President in our information age would be able to successfully fire his way out of investigations.

    1. from JT:

      If the Mueller theory of obstruction is upheld, Barr argues, it would allow for interrogations of executive branch officials on their motivations in exercising a broad range of discretionary powers.

      Barr’s critics ignore that he does not criticize the Mueller investigation as a whole, and ignore this important statement from Barr early in his memo:

      “Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function,” Barr states in the memo. “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.”

      Barr’s memo continues: “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.”

      *****

      Not enough time today for the BS cover ups of theNixon/Clinton cases

      The cases have already been made & Turley & Barr are confirming to me Mueller, Rosenstien, Obama, Hillary, Comey & all those people George has been listing for the last 2 or 3 years over their heads & Can Be Charged with at least Espionage, as in conspiring with foreign govt’s to overturn the US’s 2016 election with at least the Phonied Up Pissgate Papers, Obstruction of Justice, as in Mueller knowing wiping Peter Stoak’s & Lisa’s phones…. etc,…, Suborning Perjury as was born out as fact with the 302s regarding Flynn, more… more, more….

      DOJ/FBI have to be torn down to the studs to be completely remodeled as they , in their current form,are a Domestic Enemy of the US People!

      https://theconservativetreehouse.com/2018/12/22/report-huber-and-horowitz-investigations-deep-state-cons-constructed-by-doj/#more-158063

  9. The Democratic Party is a collecting pool of filth, which is why we have these nonsense exercises in lawfare.

  10. Admittedly, I have yet to peruse Barr’s memo, but I have not heard a rational explanation why Trump’s firing Comey in order to quash an investigation into him (assuming so for the sake of argument) ought not to be criminal despite the fact that no criminal prosecution has yet begun. Otherwise, a President will have an incentive to do his “obstruction” before a formal prosecution is filed. I fail to see why obstruction should ever be tolerated, for it frustrates the pursuit of justice whenever it occurs. And the fact that Trump had good cause to fire Comey does not preclude his additional illegitimate motivation to fire him on account of the “Russian thing.” It seems to me that an exercise of presidential power ought not to be motivated even in part by a corrupt intent as manifested by Trump’s privately expressing his hope to Comey that he would let Flynn off the hook. Such a presidential hope can only be interpreted by a subordinate as a diplomatic way to make an implicit demand because no one countermands the wishes of the president. Perhaps, Trump’s actions (known to date) do not strictly make a prima facie case of obstruction; however, they are evidence of a man who is not upholding and enforcing the rule of law consistent with his oath of office.

    1. If you break the law in trying to punish what you consider “obstruction” the law is not your friend. Barr explained that in his memo – that even the guilty have the legal right to legally obstruct their own prosecution. They may simply not violate the law in doing so.

      Mr. Barr also states several times that no offense has ever been proven to exist, the investigation of which has ever been proven to have been obstructed, either by legal or illegal means.

      Firing FBI director Comey, in hindsight, was warranted, but even before the wisdom of his discharge became public knowledge, a sitting President of the United States may fire anyone to whom he has delegated his power to enforce the laws of the United States.

      There’s absolutely no obstruction case. You can only say that if you misread subsection (c) of the statute Mueller cites and do so in ways Congress (specifically Sen. Trent Lott, who added the clause to that law) never intended for it to have been interpreted. Disregarding the legislative history of a law may be useful for misleading the (willingly misled) press, but it won’t fly in the Supreme Court.

    2. Trump May constitutionally fire anyone in the executive

      That is the end of the argument

      The constitution does not say trump can fire people only if he has an explanation you approve

      But there are lots of good explanations

      It is odd the left loved comey
      Then they hated him
      Now they love him

      Comey is a bad apple
      For a moment the left agreed

    3. The law and constitution are what they are
      Not what you think they ought to be

      If what you think the law ought to be is not what it is
      Then change it
      Regardless the rule of law requires taking the law as it is not as it ougypt to be

    4. You fail to see a lot
      Let’s start with we do not make the law up as we go

      The debate is over what is the law
      Trying to impose the law you think we should have is lawless

      Why should an actor an actor be allowed to “obstruct” prior to a proceeding ?

      This mess demonstrates why

      Comeys firing was not controversial
      There was plenty to indicate comey needed to go in 2017 read rosensteins memo
      There is much more now

      What you are arguing – what we have reached is that assorted people in doj can do as they please without oversight
      If they start and investigation of the president

      Sessions had good reason the recuse
      But rosenstein had even more

      And rosenstein did not have a legitimate basis to appoint an sc
      But sessions recusal left rosenstein without oversight
      Free to do as he pleased

    5. If you come at me with a knife
      And I shoot you before you kill me
      Is It murder if I hate you ?

      All crimes require that all elements of the crime are met
      All require an act that is a crime regardless of your motives
      Some ALSO require bad intentions

  11. Sean Hannity will be named to some White House job today or Christmas Eve. That is why he has been off the air for a couple of days. He is getting ready. He will be good for the Trump administration and should be accepted. As for Barr: bar none he had sex with a nun in high school but she consented.

  12. Everyone knows, at this stage, the Orange one, is looking for someone to do his bidding.
    Barr, disqualified himself. Today it’s Mueller, he wants to dispose of. That’s the tip of the iceberg. Who
    comes after him.? And after him, ? And after all the others he wants OUT.? This guy is a Dictator.
    He and Fox News, need to relocate to a country where their dictating will be appreciated. Neither he,
    nor his Fox enablers, have a place in the USA.

    1. In interpreting the Constitution and laws of the United States, the stout which is your namesake hasn’t helped you a bit. If you even tried to read the memo which was the ostensible reason for Senator Schumer’s latest smokescreen, you didn’t read it with anything like comprehension.

      But thanks for playing. You’ll be getting a home version of the game and a boxed set of Allen Drury novels for taking part.

    2. We have an investigation without foundation and without an alleged crime
      The left has brought us to berries Russia or to Nixon’s wet dreams

      The only crime he is the investigation itself

      If trump is looking to Kill this then he is doing his job

      I suspect he is not
      But I do suspect he is looking to bring the investigation closer to what the constitution allows

    3. A dictator ?

      Don’t dictators amass power to government at the expense of individuals

      Constrained governing is anti totalitarian

    4. Guinness,..
      -As you know, Trump has already muted most of his opposition by muzzling media criticism of him, and has also achieved a compliant DOJ, Congress, and judiciary that are all under his thumb😉😄😂.
      All hallmarks of a successful dictatorship.
      Having established his dictatorial rule, it’s fairly obvious who his next targets will be.
      You😧!, and people like you, Guinness. Be afraid, be very afraid!!

  13. Sadly, Professor, your desire to give Trump the benefit on the doubt on this appointment is, at best, naive. It’s almost as if you’ve not been watching or listening to what is happening in the White House and this Administration. The Senate isn’t beeng asked to judge a law school exam but rather to assess this man‘s Fitness to run the DOJ. The memo to which you refer wasn’t something he wrote while working at the DOJ for President Bush. No, it was an unsolicited memorandum to top Justice Department officials expressing concerns about the obstruction aspect of Special Counsel Robert Mueller’s investigation. It was, in short, a job application. Trump appoints people, not for their “experience “ but because he believes they agree with him and, more importantly, do what he wants! When they don’t live up to his expectations of loyalty he punishes them.

    I can only imagine Trump‘s glee as he read Barr’s comments about his plenary power and his right to direct a prosecutor to decide not to prosecute! Wouldn’t it be wonderful for all powerful defendants if they could call up the DOJ and say don’t prosecute the defendant because it will implicate me! I’ve read many a well written law exam that was crafted to come to a conclusion, the wrong conclusion. I’ve also read biased and well crafted briefs wrotten for one side or the other making cogent but incorrect arguments. That is the lawyer’s job! Convince the judge your guy is innocent even if he is a guilty as sin. How much better it looks if you pretend you are just writing, ignorant of the facts, to “help”.

    It’s the Senate‘s job to assess this memo and Barr‘s other writings in context. If they do, they will understand that he should be rejected.

    1. You nailed it, thank you. I’ll never understand why JT keeps picking nat shit out of pepper for Trump. Anything Trump has touched has turned into a disaster for the people that worked for him and the nation.

  14. Rod Rosenstein writes a memo firing Comey and Trump follows his Constitutional duty and fires him. And from what we found out last week, there was more to fire Comey about. Now, Barr writes a complimentary memo and everyone gets their panties in a twist. DC never fail to entertain.

  15. From the sounds of it Barr accurately documents the state of the law as it is.
    And accurately exposes the disaster that a broad interpretation of obstruction statues would cause.

    Barr further properly asserts – and aparently more broadly than just the president, that anyone in government from the president down, can not commit obstruction by excercising their legitimate powers.

    Many on the right are legitimately livid that James Comey effectively precluded the prosecution of Hillary Clinton in what is a far more compelling criminal case than anything against Trump – by this expansive theory of obstruction – Comey’s actions could be criminal. Earlier Pres. Obama publicly expressed that Clinton had committed no crime – that too would be obstruction if the broad view of obstruction is accepted.

    Comey was fired – that was the appropriate consequence for his actions.

    But we need to go farther than Barr and farther than current law. Our criminal law is much more generally over broad.

    The only distinction between a crime and an otherwise legal act can not EVER be the intentions of the actor.

    We can speculate regarding the intentions of someone who has incontrovertably committed a crime with regard to exactly what crime they committed or the severity of the crime.

    But we should not ever make a legal act into a crime based on our impressions of the intentions of the actor.

    Further obstruction – as well as many other process crimes should not ever be enforceable absent an underlying crime.

    You should not be able to obstruct injustice. Arguably lying to federal agents should not ever be a crime – though it may be admissible as evidence against you.
    But it certainly it should not be a crime to misrepresent to federal agents something that is not a crime in the first place and not any of their business.

    One of the things that is becoming increasingly self evident is that a successful challenging the legitimacy of a government investigation should undermine the fruit of the investigation.

    As has been noted, what occurred regarding Gen. Flynn does not meet the classic definition of entrapment. But it was inarguably misconduct by the FBI, and prosecuting Flynn certainly looks like misconduct on the part of Mueller.

    Quis custodiet ipsos custodes?

  16. You ignore th elephant in the room.
    His action/inaction in facillating/ fast tracking perjurer poppa’s co-conspirators to avoid their testimony being used.
    This is the obvious role that demented donnie has choosen him for.

Leave a Reply