CheckMate!

from Human Events

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.

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.”

This is a very truncated explanation of the legal debate, which covers technical issues of statutory interpretation, as well as constitutional questions about the separation of powers. If you are interested in going deep into the legal minutia, I would highly recommend reading the full Barr memo, which is excellent legal work.

For our purposes, it is enough to understand this:

Mueller adopted an expansive, acontextual, and constitutionally questionable interpretation of § 1512(c)(2) and used it to justify an extensive investigation into potential obstruction of justice by President Trump.

Barr’s interpretation of § 1512(c)(2) – which was far more textually and constitutionally sound – would have made it almost impossible for Mueller to justify investigating Trump for obstruction of justice.

Let’s begin the story.

THE GAME BEGINS: MUELLER PIVOTS TO OBSTRUCTION

Very shortly after the Mueller investigation began, Trump’s lawyers were alert to the possibility that Mueller might investigate obstruction by the President.

On June 23, 2017, Sekulow and Dowd wrote their first of many letters to the Special Counsel’s office arguing that those statutes could not be lawfully applied to the President. They might have been confident that their arguments were working, at first; Cobb went so far as to predict the investigation would be over by Thanksgiving.

In hindsight, this was optimistic.

Perhaps Trump’s legal team had reviewed the evidence, realized there was no collusion between the Trump campaign and Russia, and believed that Mueller would come to the same conclusion, quickly. But in January 2018, it must have become abundantly clear to the Trump legal team that things were not going well.

On January 8, 2018, the Mueller team requested an interview with President Trump about a wide array of subjects, including “[t]he President’s awareness of and reaction to investigations by the FBI, the House, and the Senate into possible collusion,” “[t]he President’s reaction to Attorney General Jeff Sessions’ recusal from the investigation,” and “[w]hether or not [James] Comey’s May 3, 2017 testimony led to his termination.”

These questions were tells.

None of these questions related to possible collusion by the Trump campaign with the Russian government. They were all clearly targeted at potential obstruction by the President. And President Trump’s legal team knew it.

On January 29, 2018, Dowd and Sekulow fired back with a confidential letter to the Special Counsel (that was later leaked to the New York Times). In it, they declined Mueller’s request for an interview, and pushed back on a potential obstruction theory. In particular, they suggested that 18 U.S.C. § 1505 was inapplicable to the President, because there was no “pending proceeding” against him.

But, as we now know from the Mueller Report, Mueller wasn’t relying on § 1505. Instead, he was relying on the more broadly worded § 1512(c)(2), which covers the obstruction of *potential future* proceedings, not just proceedings that are already ongoing. Mueller and his team likely clarified this point to Dowd and Sekulow, who just a week later wrote another letter to the Special Counsel, arguing that § 1512(c)(2) did not cover the President’s actions as a matter of law.

Clearly, though, Mueller was undeterred by the Trump team’s legal argument. And why would he be? This was not a lawsuit or a criminal proceeding. It was an investigation. Dowd and Sekulow couldn’t go in front of a judge and demand the investigation be stopped; no judge had jurisdiction.

But if Trump’s legal team couldn’t persuade Mueller to let go of his obstruction theory, the investigation could go on indefinitely. Any act that could be characterized as “impeding” the Russia probe – even the exercise of core Article II powers or Trump’s complaints about Mueller – could conceivably be investigated as potential obstruction of justice. Rather than ending by Thanksgiving 2017, the Mueller investigation could continue through Trump’s first term – and perhaps longer.

Dowd and Sekulow needed to come up with an answer.

And that’s why I think they turned to Bill Barr.

ENTER BARR

On June 8, 2018, Bill Barr wrote a detailed memorandum to Rod Rosenstein about what he believed was Mueller’s interpretation of 18 U.S.C. § 1512(c)(2). While Barr professed to be “in the dark about many facts,” in light of the Mueller Report, it’s clear he knew *exactly* what Mueller was up to.

There are other interesting things to note about this memorandum.

First, it’s addressed to Rod Rosenstein and Steve Engel – not to Mueller, Weissmann, or the Special Counsel’s office, which were running the Trump investigation. In that respect, it’s distinct from the Trump team’s prior letters, which were sent directly to Mueller.

Second, it is a thorough legal argument, taking up some 19 pages of single-spaced text, and full of citations to relevant authority. This memo is not an off-hand missive, sent to Rosenstein on a whim. This is serious, robust legal work product; it bears the hallmarks of having one or two bright Kirkland & Ellis associates helping Barr research and draft the memorandum.

Now, it’s possible that Barr simply heard some extremely accurate scuttlebutt from some old DOJ pals about the exact statute Mueller was relying on to investigate obstruction of justice. It’s also possible that he was so incensed that he decided, on his own initiative, to draft a very thorough memorandum to Rod Rosenstein about his concerns, appropriating some expensive Kirkland associates for the task.

But that’s improbable. A more likely explanation (and my first novel thesis) is that Trump’s legal team sought out Bill Barr, gave him inside information about Mueller and Weissmann’s interpretation of § 1512(c)(2), and asked him to write the memorandum to Rosenstein.

Why would Trump’s lawyers want Barr to do this?

Because their efforts to dissuade Mueller from pursuing obstruction using § 1512(c)(2) had failed.

Going over Mueller’s head to Rosenstein was the obvious move. If they could persuade Rosenstein that the legal theory underlying the entire obstruction investigation was unsound, Rosenstein might finally clamp down on Mueller, and the probe might come to an end.

Why Barr?

Well, he was a former AG, with all the prestige that entails. He had previously written an op-ed about why Trump was justified in firing James Comey, so Trump’s legal team must have suspected he was inclined to agree with their legal position. And finally, Barr was AG from 1991-1993 – just after Rosenstein began his career as a line attorney at DOJ.

If Trump’s team were looking for someone with the prestige and gravitas to persuade Rod Rosenstein, they couldn’t have found anyone better than Bill Barr.

This theory also explains why the memorandum is so thorough.

If Barr had written it on his own initiative, he might have had trouble wrangling associates to help him with the research and drafting, and the memorandum might not have been as robust. But if he was put up to it by Trump’s legal team, he would have had no trouble appropriating Kirkland associates for the task.

Whether or not this theory about the impetus for Barr’s memo is right, the memo itself ultimately did not have the desired effect. Rosenstein did not intervene in the Mueller investigation. Trump’s presidency would continue to operate under a cloud of uncertainty. And his legal team would need to find another way to rein Mueller in.

REMEMBER, REMEMBER THE 9TH OF NOVEMBER…

The day after the midterms, Jeff Sessions was asked for his resignation. Less than a month later, Bill Barr was nominated as his replacement. Everyone talked about how he was the “consensus choice” in the administration. No other candidate was ever seriously floated.

That leads to my second novel thesis: After it became clear that Rosenstein was not persuaded by the Barr memorandum, Dowd and Sekulow persuaded President Trump to fire Sessions and make Barr the Attorney General.

Why fire Sessions? As discussed, it was on Trump’s lawyers to solve the problem posed by Mueller’s interpretation of § 1512(c)(2). One can’t imagine they were too happy in July 2018, having realized that they had no means of stopping this investigation, save for one.

The problem for Trump’s lawyers is that Rosenstein had either adopted Mueller’s obstruction theory, or was letting him run wild with it despite his reservations. But who decides what the Department of Justice’s position on the proper interpretation of a criminal statute is? Usually, the attorney general would decide. In this case, however, it was the Deputy Attorney General, since Sessions was recused.

But what if Sessions wasn’t the Attorney General?

The timeframe is key here. The Barr Memorandum was written on June 8, 2018. It probably wouldn’t have been obvious to Barr or Trump’s lawyers that their effort to persuade Rosenstein had failed until July.

And Anthony Kennedy announced his retirement in late June.

If Trump’s legal team thought that Sessions needed to go, they probably would have been reluctant to advise Trump to fire him right away, with a bruising Supreme Court confirmation battle coming up, followed by the midterm elections.

Instead, one suspects that Trump and his team decided focus on getting their Supreme Court Justice confirmed, and to hold off on firing Sessions until after the midterms, assuming they still had control of the Senate (a likely outcome given the terrible map for Democrats).

Barr was eminently confirmable, a former Attorney General, and well-respected by the Republican establishment.

But more importantly, Trump’s legal team knew that Barr agreed with them on the meaning of § 1512(c)(2). Thus, in a perfectly lawful, legitimate manner, Barr’s confirmation would change the Department of Justice’s official view on the interpretation of § 1512(c)(2) – and thus undermine Mueller’s obstruction investigation.

DEMOCRATS SCRAMBLE

When the June 2018 Barr memorandum became public in December, many Democrats tried to weaponize it against him. But because Barr’s memo was specific to a particular statute, and was perfectly defensible legal analysis, it was hard for the Democrats to get any traction.

In hindsight, however, it’s clear that Barr was the assassin Democrats feared.

Within six weeks of his confirmation, the Mueller probe was over.

When Mueller equivocated on obstruction in his report, Barr affirmatively determined that there was no viable obstruction charge. In a twist, Barr didn’t rely on a narrow reading of § 1512(c)(2); instead, he exploited the malleability of Mueller’s theory and determined that Trump lacked the requisite intent to commit obstruction.

At the same time, he made clear during the press conference that he didn’t agree with Mueller’s legal theories; one has to suspect he was referring to the debate over § 1512(c)(2).

In any event, Mueller and Weissman had lost the chess match. Trump and his team had won.

No Collusion. No Obstruction. No more Mueller Investigation.

Checkmate.