Below is my column in the Hill newspaper on a growing mythology building around the nomination of Bill Barr for Attorney General of the United States. One of the most prominent is that Barr was intentionally evasive about releasing any report from Special Counsel Robert Mueller. Members of both parties have overwhelmingly called for the release of the report. However, Democratic members pushed Barr to promise to release the entire report before he actually reads it.
Barr said repeatedly that he believed that not only the completion of the Special Counsel investigation but the release of the information was in the public interest. Barr was repeating the standard from the regulation, which is precisely what he should do. That standard says that the Attorney General has discretion to conclude that “these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.” What the Democratic senators were demanding would have been an unethical pledge to release a report without knowing its contents. Federal law prevents the disclosure of a myriad of different types of material from Grand jury (or Rule 6(e)) material to classified material to material covered in privacy or confidentiality laws as well as possible privileged material. After pushing him on whether he would act ethically, it was a curious request for a facially unethical and unprofessional pledge.
Here is what Barr said:
“I also believe it is very important that the public and Congress be informed of the results of the special counsel’s work . . .For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political or other improper interests influence my decision.”
Here is the column:
In the classic Western film, “The Man Who Shot Liberty Valance,” Ranse Stoddard discloses to a newspaper editor that the legend about his shooting notorious gunman Liberty Valance was wrong. After hearing the true story of the demise of Valance and of Stoddard missing him entirely in their famous gunfight, Maxwell Scott rips up the account and says, “This is the West, sir. When the legend becomes fact, print the legend.”
Politics can operate on the same flawed premise, as shown in the debate over the confirmation of William Barr to be the next United States attorney general. Barr has been given the treatment in blogs and articles, creating a menacing image of a lawyer fundamentally opposed to the Russia investigation and blindly beholden to the interests of President Trump.
I testified Wednesday in favor of his confirmation before the Senate Judiciary Committee. I have known Barr for many years and represented him, along with other former attorneys general, during the Bill Clintonimpeachment period. He is one of the best lawyers I have ever known, as well as one of the most educated and circumspect. For that reason, I have been taken aback by many false accounts of his views and background.
People are free to disagree with his view of executive power or with his tough on crime approach. However, critics seems to be more interested in reconstructing his record than in recognizing it. Even the most direct answers seem to get distorted. For example, when asked if he would make public any report by special counsel Robert Mueller, Barr said he believes that the public needs to see as much of the record as possible and would seek to release the report to the fullest extent allowed by law.
That is the most that any nominee for attorney general can ethically say without seeing the report, which could contain grand jury or privileged information that Barr would be required to redact. Yet, that response is now being portrayed as sinister and equivocating. It would have been unethical and unprofessional for Barr to promise anything more than that during his Senate hearing. Thus, before legend becomes fact, it would be useful to address five common myths floating in the public about him.
Myth 1: Barr believes the president of the United States is above the law.
Before this confirmation hearing this week, Senator Richard Blumenthal said that a 2018 memorandum that Barr wrote to Deputy Attorney General Rod Rosenstein is “deeply worrisome because in effect he says the president is above the law.” Many critics have agreed. That is not what the memorandum says or even suggests. Indeed, it explicitly states the opposite. Barr has repeatedly stated that a president can be charged with criminal conduct in office. Moreover, even if presidential misconduct does not fall under the obstruction provision, he has repeatedly stated that such acts can be criminal under other provisions, constitute an abuse of power, and violate the presidential duty to faithfully execute the laws.
Myth 2: Barr believes the president cannot be charged with obstruction.
Perhaps the most common misrepresentation I have seen is that Barr maintains that a sitting president cannot be charged with obstruction of justice. That is indeed entirely untrue, as his memorandum expressly states. Barr wrote, “Obviously, the president and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth finding function,” adding, “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 has repeatedly and expressly disagreed with the White House legal team that a sitting president cannot be charged with obstruction of justice as a constitutional matter. He told the Senate, “If a president, acting with the requisite intent, engages in the kind of evidence impairment the statute prohibits, regardless whether it involves the exercise of his or her constitutional powers or not, then a president commits obstruction of justice under the statute. It is as simple as that.”
Myth 3: Barr speculated on possible use of obstruction against Trump.
Critics have characterized the premise of his memorandum as “bizarre” or “strange” and described it as “based entirely on made up facts.” Barr has been chastised for suggesting he that knows the “legal theory” of Mueller, and that he understands the “fact pattern” Mueller is investigating. The problem, however, is that Barr says precisely the opposite. At the outset of his memorandum, Barr says he is “in the dark about many facts” and was addressing only what is a commonly known focus of the investigation, which is the firing of FBI Director James Comey. We know that because it was one of the key factors behind the appointment of a special counsel. On his first day of testimony, various senators assumed the same fact.
Indeed, there are hundreds of articles on the obstruction issue addressed by Barr. One of his most vocal critics on this point wrote a lengthy piece on the same issue last year. He then proceeded, within days of his column criticizing Barr, to write another column exploring the hitherto “strange” focus of an obstruction case. Another critic wrote a New York Times column blasting Barr for the bizarre speculation on the bringing of an obstruction claim yet, last year, wrote another New York Times column exploring precisely that issue. What would be “bizarre” is a denial that Mueller has looked at the firing of Comey as a possible act of obstruction.
Myth 4: Barr thinks an attorney general must take orders from the president on investigation and prosecutions.
Critics have noted Barr stated, “The Constitution itself places no limit on the president’s authority to act on matters which concern him or his own conduct. On the contrary, the Constitution’s grant of law enforcement power to the president is plenary.” That is demonstrably true, as the Constitution does not contain any such limits. That does not mean executive actions taken for personal reasons would be lawful, or that the attorney general must carry out presidential orders on investigations.
Indeed, Barr has discussed how a president can be charged with criminal conduct and how the attorney general has a responsibility to protect the Justice Department from political influence. He stated that interference from a president could constitute not just obstruction but other crimes, and would presumably be an abuse of power and a violation of the duty to faithfully execute the laws of the United States. Barr has said that, while a president can raise certain issues or cases to the Justice Department, the attorney general makes his or her own decisions on how to prosecute. An Attorney General takes not one but two oaths: first as a lawyer to act ethically and second as a government lawyer to uphold the Constitution. Barr has said that Justice Department officials acted appropriately in resisting Nixon and resigning before they took improper action.
Myth 5: Barr was selected to scuttle the special counsel investigation.
Some have insisted that Barr was appointed to curtail Mueller and that he opposes the Russia investigation. That again is demonstrably false. Barr praised the appointment of Mueller and has never opposed the Russia investigation. He has repeatedly stated that he believes Mueller must be allowed to complete his investigation and that, as attorney general, he would turn over as much of the report to Congress as possible under existing law. He has stated, “I believe the country needs a credible and thorough investigation into Russia’s efforts to meddle in our democratic process, including the extent of any collusion by Americans, and thus feel strongly that the special counsel must be permitted to finish his work.”
None of that is the stuff of legend, of course, as these all just facts. Yet, this is Washington, where legends have a nasty habit of becoming fact.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. He testified as one of the witnesses called before the Senate Judiciary Committee in the confirmation of William Barr for United States attorney general. Follow him on Twitter @JonathanTurley.