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Checkmate.

May 7, 2019

How President Trump’s legal team outfoxed Mueller

* Barr launches wide-ranging probe into 2016 FBI spying

By Will Chamberlain on May 1, 2019

When the Mueller Report was released on April 18th, most commentators focused on the “explosive” factual allegations. But other than the shocking revelation that the President once used an expletive in private, very few of those facts were novel; most were leaked long ago.

At the end of Volume II of the Mueller Report, however, there were 20 pages of genuinely new material.

There, the former FBI director turned Special Counsel Robert Mueller defended his “Application of Obstruction-Of-Justice Statutes To The President.” These overlooked 20 pages were dedicated to defending Mueller’s interpretation of a single subsection of a single obstruction-of-justice statute: 18 U.S.C. § 1512(c)(2).

That’s quite strange, but you know what’s stranger still?

In June 2018, Bill Barr, then in private practice at Kirkland & Ellis, wrote a detailed legal memorandum to Deputy Attorney General Rod Rosenstein. This memo came to light in December, when Barr was nominated for Attorney General.

The subject was Mueller’s interpretation of the aforementioned 18 U.S.C. § 1512(c)(2).

When Barr’s memo first appeared, prominent liberal legal commentators were perplexed. Georgetown Law professor Marty Lederman wrote at Just Security:

“[T]he first huge and striking problem with Barr’s memo is that he unjustifiably makes countless assumptions about what Mueller is doing…From all that appears, Barr was simply conjuring from whole cloth a preposterously long set of assumptions about how Special Counsel Mueller was adopting extreme and unprecedented-within-DOJ views about every pertinent question and investigatory decision.”

At Lawfare, Mikhaila Fogel and Benjamin Wittes wrote:

“[I]t is not an exaggeration to say that Barr’s entire memo is predicated on two broad assumptions: first, that he knows Mueller’s legal theory, and second, that he understands the fact pattern that Mueller is investigating… Neither assumption is, in our judgment, warranted. Unlike Barr, we don’t purport to know what Mueller’s obstruction theory is.”

But now that we have the Mueller Report, things look very different.

Forrmer Deputy Attorney General Rod Rosenstein Keynote at the 2018 State of the Net Conference. Image by the Internet Education Foundation, Flickr

DUELING BRIEFS – AND A THEORY

Reading Barr’s June 2018 memo alongside the last twenty pages of the Mueller Report is a curious experience.

Together, they read like dueling legal briefs on the meaning of 18 U.S.C. § 1512(c)(2); the type of material one would expect to see from adversarial appellate litigators.

So-why did Robert Mueller dedicate 20 pages of his report to a seemingly obscure question of statutory interpretation? Why did Bill Barr write a detailed legal memorandum to Rod Rosenstein about that very same statute?

And how, exactly, did Bill Barr know that that § 1512(c)(2) was central to Mueller’s obstruction theory – in June 2018, when he was still in private practice at Kirkland?

After some consideration, I arrived at a theory that I believe answers these three questions, and others as well. For example – why was AG Jeff Sessions asked for his resignation the day after the midterms? Why was Bill Barr the only name ever seriously floated for AG? And is it merely a coincidence that six weeks after Barr’s confirmation, the Mueller probe came to an end?

This theory is not entirely my own — I’m indebted to the work of the anonymous lawyer user going by Undercover Huber on Twitter (@JohnWHuber), and his detailed thread on the subject. But the story I’m about to tell does contain some novel theses, which are noted throughout.

This is a story about a legal chess match played for the highest stakes imaginable: Trump’s Presidency – and whether it would be under the cloud of an endless special counsel investigation – hinged on the result.

John Dowd, Ty Cobb, Jay Sekulow, and the rest of President Trump’s personal legal team were on one side. Mueller, Andrew Weissmann, and the Special Counsel’s office were on the other.

The dispute was a year-long struggle over the meaning of 18 U.S.C. § 1512(c)(2).

No judge ever ruled on who was right about the meaning of this obstruction statute. No formal decision was ever rendered.

All the same, Trump’s legal team prevailed on February 14, 2019.

That’s the day William Pelham Barr was confirmed as United States Attorney General.

FRAMING THE DISPUTE

So why, exactly, was the interpretation of 18 U.S.C. § 1512(c)(2) so contested?

Let’s start by looking the statute, excerpted here:

(c) Whoever corruptly—

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) otherwise obstructs, influences or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction]. (Emphasis added).

Why was this so important to Mueller? Because most of the obstruction statutes couldn’t possibly apply to President Trump’s behavior, as they require that a defendant obstruct a “pending proceeding” before an agency or tribunal.

It is settled law that an FBI investigation does not constitute such a proceeding. But § 1512(c) applies to acts of obstruction done with the intent of impairing evidence for a future, potential proceeding. That made it potentially usable against the President.

Second – the language of subsection (c)(2), read in isolation, is *very* broad. Removing subsection (1), it reads like this:

“Whoever corruptly… obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].”

If taken to its extreme, it could be read to cover any act – no matter how lawful – that has the effect of impeding a federal investigation. That would include, for example, asking an FBI director to lay off an investigation, or firing an FBI director. The Mueller Report revealed that Mueller interpreted § 1512(c)(2) in just such a broad fashion.

Conversely, in Barr’s reading (as detailed in his June 2018 memo) subsection (c)(2) is a “residual clause” – a catch-all clause “most naturally understood to cover acts that cause a similar kind of result as the preceding listed examples, but cause those results in a different manner.”⁠ Because subsection (c)(1) deals with types of obstruction that impair evidence, Barr argues, subsection (c)(2) has to be read narrowly, as limited to obstructive acts “that impair the integrity or availability of evidence.”

Mueller firmly disagreed: in the Mueller Report, he addressed this argument specifically, boldly asserting that nothing in the text of subsection (c)(2) “limits the provision to acts that would impair the integrity or availability of evidence in an official proceeding.”

CONTINUE READING

From → World Watch

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