Barr Will Be Grilled About ‘Unusual’ Memo on Mueller’s Obstruction Probe

Trump’s attorney-general nominee has written that a key aspect of the Russia investigation is “fatally misconceived.”

William Barr (Alex Brandon / AP)

On the eve of his confirmation hearings, the attorney-general nominee William Barr released prepared remarks vowing to allow Special Counsel Robert Mueller’s investigation to run its natural course. “I believe it is in the best interest of everyone—the President, Congress, and, most importantly, the American people—that this matter be resolved by allowing the special counsel to complete his work,” Barr wrote. “The country needs a credible resolution of these issues.”

As the likely next head of the Justice Department—Republicans have majority control of the Senate, all but ensuring his confirmation—Barr will be at the center of a tug-of-war between Donald Trump, who has sought to exert greater control over the Justice Department and the FBI, and Mueller, who is probing a potential conspiracy between the Trump campaign and Russia to win the 2016 election. At least one Democrat, Senator Chris Coons, plans to ask Barr whether he will commit to resigning as attorney general if the president asks him to break the law.

Barr is an experienced choice; he served as George H. W. Bush’s attorney general from 1991 to 1993, and had a long DOJ career before that. But an unsolicited, 19-page memo he wrote last June, attacking Mueller’s obstruction inquiry as “fatally misconceived” and arguing that Mueller should not be allowed to subpoena the president about obstruction, has rattled Senate Judiciary Committee Democrats—especially in light of a new report that frames the obstruction probe as a national-security imperative.

Late Friday night, The New York Times provided a new window into how top FBI officials’ perception of the Russia investigation shifted after Trump fired then–FBI Director James Comey, who was leading the federal probe of Trump’s campaign team. “Not only would it be an issue of obstructing an investigation,” the FBI’s former top lawyer, James Baker, told lawmakers last year, “but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.” FBI leaders, in other words, felt that Trump’s attempt to obstruct the Russia investigation—he told NBC’s Lester Holt that he fired Comey because of “this Russia thing”—was itself a serious national-security issue.

That’s why, in the chaotic days following Comey’s firing in May 2017, they opened a counterintelligence investigation into the president to determine whether he was acting in Russia’s interests rather than in America’s. That decision would not have been made lightly—opening such an investigation, especially into a sitting president, would’ve required “layers of review,” Frank Figliuzzi, the FBI’s former assistant director for counterintelligence, told me. “It’s going to the general counsel of the FBI and being reviewed by the best national-security lawyers. Only then is it going across the street to DOJ” for approval.

Deputy Attorney General Rod Rosenstein was notified, according to the Times, and ultimately handed off the investigation to Mueller. It isn’t clear whether it’s still open, but the revelation that Trump himself either was or remains the target of a counterintelligence investigation has made Barr’s views on the probe, which he would oversee as attorney general, even more significant. Democratic Senator Patrick Leahy “believes that Barr’s best course of action, given his past comments and actions, would be to commit to recuse himself,” his spokesman told me last week. Senator Mazie Hirono of Hawaii also believes that Barr should recuse himself, according to her spokesman, and that at the very least he “should have to publicly address it during the hearing.” In a call with reporters on Tuesday, Coons, who sits on the Judiciary Committee, said he found the memo “unusual” and intended to press Barr on whether he would recuse himself if advised to do so by ethics officials at the Department of Justice.

In a letter sent to the Justice Department’s inspector general last week, Senate Judiciary Committee Democrats, including Ranking Member Dianne Feinstein, expressed concern that Acting Attorney General Matthew Whitaker’s decision to disregard ethics officials’ advice that he recuse himself (due to his past statements and writings criticizing the Mueller investigation) could set a precedent for the incoming attorney general. “The poor judgment Mr. Whitaker demonstrated in rejecting the advice of career ethics officials should not establish a precedent for Mr. Barr or any other senior DOJ official to similarly disregard the independent assessment of conflicts of interest by career DOJ staff,” they wrote.

Barr did not address the possibility that DOJ ethics officials could advise him to recuse himself from the probe in his prepared remarks. But he did try to walk his fatalistic view of Mueller’s inquiry back a bit. “I wrote the memo as a former Attorney General who has often weighed in on legal issues of public importance” and did not intend to argue that a sitting president can never obstruct justice, he said.

But the explanation provided little comfort to Coons. “In our private meeting, Barr made a similar characterization of that memo,” he told reporters on Monday. “And I am not satisfied.” Coons said it struck him as “unusual” for a former attorney general to write such a lengthy, “unsolicited” document while holding a full-time legal job. “That would’ve required a fair amount of investment of time and resources,” Coons said. He added that he was struck in particular by Barr’s comment that he did not seek out the attorney-general job when “he essentially tried out for it” with the memo. Democratic Senator Sheldon Whitehouse, who sits on the Senate Judiciary Committee, plans to ask Barr who paid him, if anyone, for the time it took him to write and research the memo, whether he discussed it with the White House, and how it was transmitted to the Department of Justice.

Barr, who reportedly interviewed to be Trump’s defense lawyer last year, shared the memo with members of Trump’s legal team around the time he submitted it to Rosenstein and Assistant Attorney General Steven Engel, according to a letter Barr wrote to Senate Judiciary Chairman Lindsey Graham late Monday night. White House Special Counsel Emmet Flood and White House Counsel Pat Cipollone both received a copy of the memo, Barr told Graham, and he discussed its contents with Trump’s lawyers Marty and Jane Raskin and Jay Sekulow, as well as with Jared Kushner’s attorney Abbe Lowell. “My purpose was not to influence public opinion on the issue, but rather to make sure that all of the lawyers involved carefully considered the potential implications of the [obstruction] theory,” Barr wrote.

Democrats are also eager to gain assurances about the fate of the Mueller report itself. In recent days, Rudy Giuliani, one of Trump’s personal lawyers, has said he hopes Trump’s legal team will get to review and “correct” any report before it is given to Congress or made public. Notably, Barr did not commit in his prepared remarks to releasing the full contents of such a report, saying only that he would “provide as much transparency” as possible about the “results” of Mueller’s work.

The Justice Department didn’t respond to a request for comment on whether Barr’s view of the obstruction probe has changed at all in light of the Times report. But Barr acknowledged in the memo that he was “in the dark” about many of the facts of the investigation, and on Monday he endorsed Mueller’s overall mission of exposing and deterring foreign election interference. “It is imperative that people have confidence in the outcome of elections,” Barr wrote. “I believe that our country must respond to any foreign interference with the strongest measures.”