How the Supreme Court could vindicate Bill Barr on obstruction
In 2018, as a private citizen and former attorney general, William P. Barr sent the Justice Department a 19-page memo criticizing the theory of obstruction that special counsel Robert S. Mueller III was using to pursue President Donald Trump. The memo became public after Trump nominated Barr to lead the Justice Department. Democrats and liberal commentators assailed it and defended Mueller, but in 2019 Barr was confirmed anyway and sworn in as attorney general.
The obstruction issue faded after the Mueller investigation ended with a whimper later that year. Barr resigned as attorney general after the 2020 election over Trump’s efforts to overturn it. But six years after his memo, in a case arising from the Jan. 6, 2021, Capitol riot, the Supreme Court might finally vindicate Barr’s legal reasoning and repudiate Mueller’s. There are lessons in this saga about the law’s unpredictability — and insights for the justices as they grapple with the scope of prosecutorial power in the political system.
Recall, if you can, 2018. Mueller was at work probing allegations that Trump’s campaign secretly colluded with Russia during the 2016 election. No charges for collusion were ever brought, but Mueller investigated at length whether Trump committed a crime by obstructing the investigation — including by asking then-fbi Director James B. Comey to go easy on Michael Flynn, who was briefly Trump’s national security adviser. Barr’s memo argued that Mueller’s notion that Trump committed obstruction “is premised on a novel and legally insupportable reading of the law.”
Congress had passed the 2002 law in question — 18 U.S.C. Section 1512(c), in legalese — after the Enron corporate fraud scandal, targeting people who shredded documents to evade subpoenas. Backed by a 20-year maximum penalty, the statute prohibits “corruptly” altering or destroying “a record, document or other object” to impair its “availability for use in an official proceeding” — and tacks on a prohibition against “otherwise” obstructing or influencing a proceeding.
That statute, Barr wrote in his 2018 memo, “previously has been exclusively confined to acts of evidence impairment.” But he warned, correctly as it turned out, that Mueller wanted to give 1512(c) “a new unbounded interpretation” based on the “otherwise” clause — turning the statute into an “all-encompassing provision prohibiting any act influencing a proceeding if done with an improper motive.” According
to Barr, that interpretation ripped the statute from its context and ignored its text and structure. It would have “astounding” implications for government.
Now the Supreme Court will have its say. Apparently unpersuaded by Barr’s reasoning, the Biden administration’s Justice Department has charged some 350 out of 1,300 defendants in Capitol riot cases with violating 1512(c) by disrupting the joint session of Congress. One defendant challenged the statute’s application to him in Fischer v. United States, which reached the Supreme Court for oral arguments on Tuesday.
Solicitor General Elizabeth B. Prelogar, who worked on the Mueller probe, argued that 1512(c) swept far beyond evidence tampering. Any efforts to obstruct a current or future proceeding could potentially be covered, including, she conceded, nonviolent acts of protest. A majority of the justices — including President Biden’s appointee, Ketanji Brown Jackson — seemed skeptical that the law could apply to conduct so different from the type it was drafted to prohibit in the wake of Enron.
Prelogar assured the justices that the statute’s “corruptly” requirement would prevent it from being overused. But Barr’s memo warned that “courts have evinced a lot of confusion” over that term. Under Mueller’s theory, Barr worried, controversial acts Trump took as president aimed at influencing the Justice Department could become felonies if Mueller judged that Trump had nefarious intent. That would be a subjective, political conclusion. Historically, Barr argued, corrupt obstruction of a proceeding meant something more concrete: “compromising the honesty of a decision-maker or impairing evidence.”
Barr’s observations also foreshadowed the problems of presidential immunity that the Supreme Court will consider this week. Trump’s lawyers will argue Thursday that he cannot be criminally prosecuted for “official acts” he took as president under the logic of a 1982 Supreme Court decision that barred civil lawsuits against a president for official acts. The government (represented again by a Mueller probe veteran, Michael Dreeben) will argue that there is no such immunity.
Trump “has not argued — and could not plausibly argue — that the Constitution vests the President with authority to perform the conduct prohibited by” the obstruction law, Dreeben’s brief says. But Barr saw in 2018 that this was not true. The once and future attorney general was deeply concerned that an overbroad definition of obstruction would infringe on the president’s constitutional duties. After all, a big part of a president’s job is “to make decisions ‘influencing’ proceedings,” he observed. An untold number of proceedings take place simultaneously in the executive-branch departments and agencies the president oversees, and the president also often tries to influence Congress. If that influence can by itself be a crime based on a subjective judgment of the president’s state of mind, it would seem to suggest a need for presidential immunity for the government to function.
Barr’s preferred solution for this constitutional problem was simply to rein in prosecutors’ implausible definition of obstruction under 1512(c). As Barr explained, “if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony ... then he, like anyone else, commits the crime of obstruction.” Under a correct reading of the obstruction law, it would “in no way” infringe on a president’s constitutional powers, Barr wrote.
One problem for the Biden administration is that it is asking the justices to bless a sweeping interpretation of 1512(c) at the same time it tells them there is no need for presidential immunity. It’s hard to see how both of those positions could prevail.
Barr’s memo helps illustrate a subtle link between the Fischer obstruction case and the presidential immunity case. The more extravagantly prosecutors construe criminal laws such as 1512(c), the greater the need for presidential immunity to prevent bullheaded prosecutors from disabling the presidency. But if the Supreme Court continues to rein in prosecutors’ novel legal theories, as it likely will do in Fischer, then the president’s prerogatives are less likely to be criminalized in the first place and the need for immunity is diminished.
A poorly drafted obstruction law is playing an alarmingly prominent role in American politics. It helped power the Mueller investigation that dominated Trump’s first two years in office, polarized the country and radicalized many conservatives against “the deep state” without producing any collusion charges. It was then put to novel use in response to a violent riot that interrupted the transfer of power and shamed the country. Those two episodes bookend Barr’s experience as a Trump official. If the Supreme Court affirms his 2018 analysis in June, as it should, it will be vindication of the tragic kind.