During his Senate Judiciary Committee hearing Wednesday, Attorney General Bill Barr distilled his controversial views on executive power and obstruction into their simplest form yet – and left legal experts stunned.
Answering a question from Sen. Patrick Leahy (D-VT), Barr outlined a theory in which a President’s interference in an investigation — including shutting it down — can’t be obstruction of justice if it was constitutionally authorized action and if he was doing it because he thought the investigation was based on false allegations.
Barr: “If in fact a proceeding was non well-founded, if it was a groundless proceeding, if it was based on false allegations, the President does not have to sit there, constitutionally, and allow it to run its course.” pic.twitter.com/Ow92ZrYWzb
— TPM Livewire (@TPMLiveWire) May 1, 2019
“Most of the obstruction claims that are being made here, or episodes, do involve the exercise of the president’s constitutional authority,” Barr said. “We now know that he was being falsely accused.”
That statement is the essence of what he laid out in an 18-page unsolicited memo he sent the White House and Justice Department last year before he was nominated for his current post. It was also hinted at in his four-page letter to Congress last month formally clearing President Trump of criminal obstruction.
But legal and historical experts tell TPM that the theory is both a “disturbing” interpretation of executive power and completely divorced from the circumstances of Trump’s case.
“Barr’s view of Trump’s behavior is a stunning view of basically limitless power to the executive,” Matthew Dallek, a political historian at George Washington University, told TPM. “There really are almost no constraints.”
“I think it’s both legally confused and factually confusing,” Stanford law professor David Sklansky said.
Barr laid out a view on Wednesday that if a “proceeding was not well-founded, if it was a groundless proceeding, or based on false allegations, the President does not have to sit there constitutionally and allow it to run its course.”
“The president could terminate that proceeding and it would not be a corrupt intent because he was being falsely accused,” Barr claimed.
Dallek equated this to the old quote from Richard Nixon, that “when the President does it, that means that it is not illegal.”
Multiple presidential powers experts TPM spoke to suggested that, under Barr’s theory, Nixon’s own attempts to cover up the Watergate burglary wouldn’t be considered obstruction.
“It really takes your breath away. It completely subverts the idea, which Mueller actually states in his report, that no President is above the law, no person is above the law,” Dallek said.
“It’s disturbing for the nation’s chief law enforcement officer to take a view of obstruction that gives the president such a free hand,” Sklansky said.
But beyond the concerns with Barr’s legal rationale, experts said his hypothetical didn’t apply to the facts of what Trump actually did.
“I think it undermines the President’s case, not support it, because it is so far from what the President did here,” Alex Whiting, a Harvard law professor and former federal prosecutor, told TPM.
First was Barr’s claim that Trump was “falsely accused.”
Special counsel Robert Mueller’s report never goes that far, and it said instead that there was not evidence establishing a criminal conspiracy between Russia and the Trump campaign. It found that the campaign had “numerous links” to various Kremlin-tied figures and that the campaign “expected it would benefit” from Russia’s meddling efforts.
“Trump was not falsely accused of anything,” said Barbara McQuade, a former U.S. attorney, told TPM. “He was engaged in contacts with Russians that were profoundly wrong even if it did not amount to a crime of conspiracy. He should not be absolved of obstructing the investigation into that conduct.”
Additionally, even if Trump was sure that he had not conspired with the Russians, there was no way for him to know for sure whether those around him had or not.
Then, there was Barr’s suggestion that Trump was acting in good faith to shut down an investigation he found to be baseless.
As Whiting pointed out, Trump did not seek to end the Mueller probe in the open where he could accept the political ramifications of such a move. Instead, he often acted secretly, giving certain orders in private — including when he cleared the room to talk to then FBI Director James Comey — and seeking to use rogue agents, such as his former campaign manager Corey Lewandowski, when officials in his White House refused to carry out his orders. He often changed his story and demanded that others in the administration, like White House Counsel Don McGahn, change theirs.
“He didn’t act like somebody who was obeying the law. He acted like somebody who was breaking the law,” Whiting said.
And finally, Mueller provided plenty of evidence of corrupt motives that were driving Trump: the political embarrassment of the investigation, the fear that it was delegitimizing his 2016 election win, the belief that some of the conduct of him and his associates could be perceived as criminal.
“If a President is shutting down an investigation because he thinks it will embarrass him politically or undermine the legitimacy of his election, that is corrupt intent,” Sklansky said.