WASHINGTON (WASHINGTON POST) - Mr William Barr, President Donald Trump's nominee to be attorney-general, wrote an unsolicited memo to top Justice Department officials in June objecting to the notion that Mr Trump may have committed the crime of obstruction of justice.
In a 19-page memo, Mr Barr sharply criticised an apparent aspect of the investigation by the special counsel, Mr Robert Mueller, that Mr Trump may have committed a crime by trying to get the FBI director at the time, Mr James Comey, to quash the criminal investigation into his first national security adviser, General Michael Flynn, and later by firing Mr Comey.
Mr Barr argued that the Justice Department must not accept the notion that a President can violate a statute that criminalises obstruction of justice by exercising his constitutional authority in an otherwise lawful way - such as by firing a subordinate or using his "complete authority to start or stop a law enforcement proceeding" - but with a corrupt motive.
Mr Barr's views are likely to become a topic of intense scrutiny at his Senate Judiciary Committee confirmation hearing. They raise the question of whether, if he is confirmed and takes over supervision of Mr Mueller's inquiry as attorney-general, he would order Mr Mueller to shut down the obstruction-of-justice component of his investigation.
"Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction," Mr Barr wrote, adding: "Mueller's obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law. Moreover, in my view, if credited by the department, it would have grave consequences far beyond the immediate confines of this case and would do lasting damage to the presidency and to the administration of law within the executive branch."
The Trump administration provided Mr Barr's memo to the Senate Judiciary Committee on Wednesday (Dec 19) as part of his nomination materials. Its existence was reported earlier by The Wall Street Journal.
Mr Barr wrote his memo on June 8, shortly after The New York Times obtained and published a memo from Mr Trump's legal team to Mr Mueller that essentially laid out arguments against any effort by the special counsel to subpoena the President, including by arguing that obstruction-of-justice laws did not apply to Mr Trump.
At the time, legal experts pointed out that arguments by Mr Trump's lawyers were beside the point because they had erroneously focused on the wrong obstruction-of-justice statute, and pointed instead to the one Mr Barr addressed as the law that potentially covered the President's actions.
In criticising the notion that this law should be applied to Mr Trump, Mr Barr acknowledged that the two modern presidents subjected to impeachment proceedings, Mr Richard Nixon and Mr Bill Clinton, both were accused of obstruction of justice.
But he distinguished their actions, saying that they centred on efforts to cover up the truth, such as by suborning perjury, rather than ordinary acts of executive authority.
Accepting the theory that such a discretionary action could be criminal if undertaken with a corrupt motive, he said, would open the door to submitting not only presidents but also Justice Department prosecutors to the risk of criminal grand jury investigations to look into whether they acted with an improper purpose.
"If embraced by the department, this theory would have potentially disastrous implications, not just for the presidency, but for the executive branch as a whole and for the department in particular," he wrote, adding: "All that is needed is a claim that a supervisor is acting with an improper purpose and any act arguably constraining a case - such as removing a US attorney - could be cast as a crime of obstruction."
Mr Barr addressed his memorandum to Mr Rod Rosenstein, the deputy attorney-general, who was then overseeing Mr Mueller's investigation as the acting attorney-general for that matter because then-Attorney-General Jeff Sessions was recused from it, and to Mr Steven Engel, the head of the Justice Department's Office of Legal Counsel.
Known for advancing a broad view of presidential power, Mr Barr previously led the Office of Legal Counsel and then served as attorney-general in the first George Bush administration.