UPDATE: On Feb. 14, 2019, the Senate confirmed William Barr to be the next attorney general of the United States by a vote of 54-45.
Last month, news broke that in June 2018, President Trump’s current nominee for attorney general, William P. Barr, sent an unsolicited 20-page to the Justice Department critiquing special counsel Robert Mueller’s current investigation into Russian election interference.
Barr, who previously served as attorney general under President George H.W. Bush, penned the memo as “a former official deeply concerned with the institutions of the Presidency and the Department of Justice.” The memo questions the scope of Mueller’s investigation, and it argues that Mueller should not be permitted to demand answers from the president about possible obstruction of justice based on attempts by Trump to pressure former FBI Director James Comey to drop his investigation of Trump’s ex-National Security Advisor Michael Flynn.
The fact that Barr sent Trump this memo, and may have subsequently been rewarded with a nomination to join Trump’s cabinet, raises serious concerns. To start, the memo’s legal theories advance an overly expansive view of presidential power. More specifically, the memo about whether Barr would order Mueller to halt further inquiry into possible obstruction by the president if the Senate confirms him. It even raises questions about whether Barr deliberately sought to curry favor with Trump by taking a position favorable to him in order to secure a top government position.
Legal commentators are divided in their interpretation of the Barr memo. Marty Lederman, a former top Obama administration lawyer, for “conjuring from whole cloth a preposterously long set of assumptions” about Mueller’s investigation. He also critiques Barr’s analysis, more broadly, for its sweeping views of the president’s constitutional role and prerogatives, including the notion that the president has “absolute” and “all-encompassing” constitutional authority over actions by executive branch officers in carrying out law enforcement powers given to them by Congress, including decisions about criminal investigation and prosecution. In a New York Times , Daniel Hemel and Eric Posner go further, arguing that Barr’s memo “seriously damages his credibility and raises questions about his fitness for the Justice Department’s top position.”
Others, however, have been more muted in their critiques. For example, Jack Goldsmith, who served as head of the Justice Department’s Office of Legal Counsel under George W. Bush, of Barr’s memo, maintaining that Barr’s positions on executive power have “significant support” in precedent. While that view may not be surprising coming from a former top lawyer in the George W. Bush administration, perhaps Goldsmith’s more interesting point is that a close reading of the Barr memo suggests that Barr has not already made up his mind to stop Mueller’s investigation into obstruction by Trump. Rather, Goldsmith suggests, the memo may actually and openly concede a plausible path to Trump’s eventual guilt. Goldsmith points to Barr’s statement that he is “in the dark about many facts” and Barr’s recognition that, at least in some circumstances, the president can commit obstruction of justice by sabotaging a proceeding’s truth-seeking function — for example, by encouraging perjury or inducing a witness to change his or her testimony.
That is a critical concession, according to Goldsmith, and it reduces the importance of what has been the most attention-grabbing argument in the Barr memo — that Mueller could not pursue an obstruction charge if Trump merely “hoped” Comey would drop his investigation of Flynn or fired Comey without proof that Trump sought to impair evidence-gathering.
Even if Goldsmith is right that Barr has not entirely prejudged Mueller’s investigation, however, the memo is worrying and should trigger intensive scrutiny by the Senate during the upcoming confirmation hearings.
The Senate needs to press Barr on his views of executive power, which will have ramifications far beyond the Mueller investigation. The Senate should not confirm any attorney general whose extreme views of presidential power diverge from Supreme Court precedent and a proper regard for our constitutional separation of powers. My colleagues have already described how Barr previously laid the groundwork for massive violations of Americans’ privacy rights in creating the National Security Agency’s bulk data collection program. The Barr memo enhances our fears about how its author might further erode constitutional rights if he is again appointed attorney general.
The Senate needs to probe Barr on his views of obstruction of justice and how he might interpret the if he knew more about the facts. In particular, the public needs to know under what circumstances Barr would halt Mueller’s obstruction investigation. Even if Barr was acting as a well-intentioned former public servant, and not as a suppliant for a client, it is essential to scrutinize how his positions on the presidency could affect the ongoing investigation into possible malfeasance by this particular president. And the Senate must likewise demand answers from Barr on whether, and to what extent, he to keep secret portions of Mueller’s report, stymying further investigation by Congress.
Senators should ensure that the nation’s top law enforcement official isn’t going to stand in the way of a full and accurate account of key events in the Trump presidency.
Sign up for the and get our finest content from the week delivered to your inbox every Saturday.
Learn More About the Issues on This Page
-
News & CommentaryDec 2024
Civil Liberties
We Need to Know More About State Supreme Court CasesWe Need to Know More About State Supreme Court Cases
State Supreme Courts interpret laws that impact some of the most intimate parts of our lives. Communities have a right to know what’s on the docket. -
Press ReleaseDec 2024
Civil Liberties
New ACLU Report Reveals Most State Supreme Courts Fail to Meet Key Transparency MeasuresNew ACLU Report Reveals Most State Supreme Courts Fail to Meet Key Transparency Measures
NEW YORK — Nearly half of all state supreme courts across the country fail to regularly post new cases they are considering, with only six meeting four key transparency measures already implemented by the U.S. Supreme Court, according to a new report published today by the American Civil Liberties Union. The report identifies significant steps that state supreme courts should take to inform the public about their cases, which have only grown in importance as the federal judiciary has become more hostile to protecting core rights and advocates have turned to state protections and state court litigation in response. Based on an analysis of the practices and policies of the highest courts in each state, including D.C., the report “Scorecard for State Supreme Court Transparency: How Does Your State Stack Up?” ranks each state supreme court in five tiers based on compliance with four key transparency measures. These measures include posting new cases online in a timely manner, providing timely information about legal issues presented by cases, making dockets accessible and free for the public, and making merits briefing accessible and free for the public. “State courts regularly hear — and are the final word on — cases affecting abortion rights, voting rights, criminal justice reform, and more. Yet, in many instances, the highest state courts do not provide meaningful public access to information about cases affecting the rights and liberties of millions of people. We urge state supreme courts to bring more transparency to the critical work they do,” said Julie Murray, co-director of the ACLU’s State Supreme Court Initiative. “In the face of a federal judiciary increasingly unwilling to protect core rights and an incoming administration that threatens to exacerbate that problem, state courts are an important defense for our liberty. They should be leaders in transparency, too,” said Bridget Lavender, Skadden Fellow with the Initiative. The report emphasizes that state courts “play an outsized role” in many parts of the law, but their ability to “guard our liberties depends in significant part on whether those courts adopt transparent processes.” It further highlights that state supreme courts have led the way on enormously consequential decisions in recent years. In particular, some state supreme courts have recognized the right of same sex couples to marry, and did so long before federal courts. They have also declared the death penalty unconstitutional under state law despite contrary federal law, protected access to reproductive health care as a right even as that right was being stripped away at the federal level, and provided more robust protection to people subject to unreasonable searches and seizures. The report urges state supreme courts to take action to improve their transparency practices, taking notes from the courts that have already implemented these measures. It notes that regularly posting new cases and the issues they represent, and providing timely access to dockets and merits briefing allows the public, the press, and the legal community to track cases as they unfold, identify cases with statewide consequences, and understand what’s at stake. -
Press ReleaseNov 2024
National Security
+2 Issues
ACLU Urges House to Kill Bill that Could Give Trump Admin Power to Crush Dissent and Go After Political EnemiesACLU Urges House to Kill Bill that Could Give Trump Admin Power to Crush Dissent and Go After Political Enemies
WASHINGTON — The American Civil Liberties Union strongly urges the House of Representatives to vote NO on H.R. 9495, the Stop Terror-Financing and Tax Penalties on American Hostages Act, which would grant Donald Trump and his handpicked secretary of the Treasury power to investigate and effectively shut down any tax-exempt organization — including news outlets, universities, and civil society groups — by stripping them of tax-exempt status based on an unilateral accusation of wrongdoing. “Passing this bill would hand the incoming Trump administration a dangerous new tool it could use to stifle free speech, target political opponents, and punish disfavored groups,” said Kia Hamadanchy, senior policy counsel at ACLU. “The freedom to dissent without fear of government retribution is a vital part of any well-functioning democracy, which is why Congress must block H.R. 9495 before it’s too late.” While there is a 90-day “cure” period in which a designated nonprofit can mount a defense, it is a mere illusion of due process. The government may deny organizations its reasons and evidence against them, leaving the nonprofit unable to rebut allegations. This means that a nonprofit could be left entirely in the dark about what conduct the government believes qualifies as "support," making it virtually impossible to clear its name. Last month, the ACLU and a diverse array of over 130 other tax-exempt organizations — including human rights, reproductive health, and immigrants’ rights groups — wrote to Congress urging them to vote no. The letter also explains that the groups do not oppose the provisions in H.R. 9495 that relate to preventing the IRS from imposing fines and penalties on hostages while they are held abroad. Indeed, these provisions have already passed the Senate on their own, and if the House of Representatives were to pass a version of this bill that did not include the text of H.R. 6408, it could be sent immediately to President Biden for his signature. -
News & CommentaryNov 2024
Civil Liberties
Donald Trump Will Return to the White House in January. The ACLU is Ready.Donald Trump Will Return to the White House in January. The ACLU is Ready.
Starting in 2016, the ACLU filed more than 400 legal actions against Trump and his administration. As Trump returns to the White House, we’re ready to return to the courts and Congress to fight for our civil liberties.