Trump's attorney general pick once sent an unsolicited memo to the Justice Department calling Mueller's obstruction probe 'legally insupportable'

Ann Heisenfelt/Getty Images; Ron Sachs/Consolidated News Pictures/Getty ImagesRobert Mueller in 2009 and William Barr in 1991.
  • President Donald Trump’s pick for attorney general,William Barr, criticised the special counsel Robert Mueller’s investigation into potential obstruction of justice as “legally insupportable” in an unsolicited memo to the Justice Department earlier this year.
  • Barr reportedly told Trump the memo could come up during his confirmation hearing before the Senate.
  • If confirmed, Barr would have the power to fire Mueller.
  • Trump frequently characterises the investigation as a politically motivated “witch hunt” and a fishing expedition, and he has suggested that the “Trump Justice Department” should do more to shield him from Mueller.

William Barr, President Donald Trump’s nominee for attorney general, sent an unsolicited memo to the Justice Department in June calling the special counsel Robert Mueller’s investigation into obstruction of justice “legally unsupportable” and “potentially disastrous,” The Wall Street Journal reported on Wednesday.

In his 20-page memo, which the Journal reviewed, Barr argued that Mueller’s obstruction probe is based on an overly expansive reading of the special counsel’s powers.

He also wrote that Mueller shouldn’t be allowed to demand an interview with Trump about obstruction of justice.

“As I understand it, his theory is premised on a novel and legally insupportable reading of the law,” Barr wrote, according to the Journal. “Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction.”

The investigation, Barr said, shouldn’t be sanctioned by the Justice Department.

Trump and his allies frequently criticise the Russia investigation as a politically motivated “witch hunt” aimed at undermining Trump’s presidency. In particular, Trump’s lawyers are said to be worried about the president’s legal exposure in the obstruction thread of the inquiry.

The Journal reported that in addition to sending the memo to the Justice Department, Barr also sent it to Trump’s attorneys.

Legal experts pointed out that the 20-page document would have taken several hours to write, and that it signals one of two possibilities: either Barr feels very strongly about the obstruction probe, or he was angling for a job.

Matthew Miller, a former Justice Department spokesperson,wrote on Twitter that Barr’s memo “raises major questions about whether he should be allowed to oversee the Mueller probe.”

While it’s true that former officials sometimes relay their thoughts on legal issues to the Justice Department, “20-page memos that are sent to counsel for the subject of an investigation” are “not common, and it doesn’t happen by accident,” Miller added.

Ultimately, experts said, Barr’s views on executive power and his decision to defend Trump in a memo to both the Justice Department and to Trump’s lawyers may indicate that if confirmed, he would need to recuse himself from overseeing Mueller.


Read more:
Meet William Barr: What you need to know about the possible future attorney general

Mueller’s office is investigating Russia’s interference in the 2016 presidential election, whether the Trump campaign cooperated with Russia, and whether Trump obstructed justice by firing former FBI director James Comey in a bid to stop those investigations.

If the Republican-controlled Senate confirms Barr as attorney general, he would have the power to fire Mueller.

In his memo, Barr argued that a president can only be accused of obstructing justice if he destroyed evidence or told a witness to lie. But firing Comey, he said, was perfectly within his powers.

In a 2017 Washington Post op-ed, Barr also argued that Trump made “the right call” by firing Comey.

MuellerAlex Wong/GettyThe special counsel Robert Mueller.

Trump nominated Barr a month after the resignation of Jeff Sessions, his former attorney general. Barr had a stint as attorney general from 1991 to 1993, under the administration of President George H.W. Bush, and was working as a lawyer in a private practice at the time he sent the memo.

Trump himself is deeply hostile to the special counsel investigation, often calling for it to be shut down, characterising it as a “witch hunt”, and falsely accusing Mueller of coercing people to “flip and lie.” His acting attorney general, Matthew Whitaker, has also said he wants to curtail the powers of the investigation.

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