At­tor­ney gen­eral pick’s memo wor­ries Dems

Barr called Mueller case ‘fa­tally mis­con­ceived’

USA TODAY US Edition - - NEWS - Kevin John­son and Bart Jansen

WASH­ING­TON – Wil­liam Barr’s 19page mem­o­ran­dum was strik­ing enough when it emerged last month.

The at­tor­ney gen­eral un­der Pres­i­dent Ge­orge H.W. Bush had just been nom­i­nated to the same post in Pres­i­dent Don­ald Trump’s ad­min­is­tra­tion when the doc­u­ment re­vealed his sting­ing cri­tique of Rus­sia spe­cial coun­sel Robert Mueller’s in­quiry into pos­si­ble ob­struc­tion by Trump.

Not only did Barr ob­ject to any de­mand that “the pres­i­dent sub­mit to in­ter­ro­ga­tion” by Mueller’s team, but he as­serted that the spe­cial coun­sel’s likely the­ory – that Trump sought to ob­struct Mueller’s in­quiry by fir­ing FBI Di­rec­tor James Comey – was “fa­tally mis­con­ceived.”

Barr’s un­so­licited coun­sel di­rected last June to Deputy At­tor­ney Gen­eral Rod Rosen­stein, who was over­see­ing Mueller’s work, was not meant for pub­lic con­sump­tion. But it prom­ises to be among the most in­cen­di­ary flash­points in the 77th at­tor­ney gen­eral’s bid to be­come the na­tion’s 85th chief law en­force­ment of­fi­cer Tues­day be­fore the Se­nate Ju­di­ciary Com­mit­tee.

Last week, Barr’s work was thrust fur­ther into the spot­light when it was re­vealed that Rosen­stein in­tended to leave the Jus­tice Depart­ment after Barr’s an­tic­i­pated con­fir­ma­tion.

Some Democrats, con­cerned that the nom­i­nee’s memo rep­re­sented a threat to Mueller, called on Barr to re­cuse him­self from the Rus­sia in­quiry as a con­di­tion of his con­fir­ma­tion. “I want him to com­pletely dis­avow that the­ory of lim­its of the au­thor­ity of the spe­cial coun­sel,” Sen. Richard Blu­men­thal, D-Conn., a com­mit­tee mem­ber, told USA TO­DAY. “I want iron­clad, spe­cific lim­its and pos­si­bly even re­cusal.”

Sen. Dianne Fe­in­stein of Cal­i­for­nia, the top Demo­crat on the panel, asked Barr who re­quested the memo and to whom he pro­vided it after see­ing re­ports he gave it to Trump’s lawyers in ad­di­tion to Rosen­stein. She said that in 25 years on the com­mit­tee, she had never seen a nom­i­nee write such an in­depth le­gal memo for no rea­son.

For­mer Repub­li­can at­tor­neys gen­eral said Barr has some ex­plain­ing to do, sig­nal­ing that the nom­i­nee could best calm the tur­bu­lent po­lit­i­cal wa­ters by en­sur­ing law­mak­ers that his pri­vate coun­sel was of­fered as just that – with­out the ben­e­fit of any in­side knowl­edge of Mueller’s in­ves­ti­ga­tion.

“This is some­one who has held the big­gest jobs at the Jus­tice Depart­ment,” for­mer At­tor­ney Gen­eral Michael Mukasey told USA TO­DAY. “He was at­tor­ney gen­eral, deputy at­tor­ney gen­eral and di­rected the Of­fice of Le­gal Coun­sel. He is a for­mi­da­ble lawyer who might best ex­plain his work as any good lawyer would: that he will al­ways fol­low the law.”

Barr will have to as­sess a mul­ti­tude of weighty ques­tions, from the bound­aries of the pres­i­dent’s ex­ec­u­tive au­thor­ity to the chal­lenge of lift­ing sag­ging mo­rale in­side a sprawl­ing depart­ment that for the past two years has been a punch­ing bag for the pres­i­dent.

“I can’t think of a more po­ten­tially con­se­quen­tial time for any at­tor­ney gen­eral than the is­sues fac­ing Jus­tice to­day,” Mukasey said.

Troop­ing to and from pri­vate meet­ings with com­mit­tee mem­bers last week, Barr de­clined pub­lic com­ment, though he made a few brief ex­cep­tions.

Asked about his re­la­tion­ship with Mueller, who served un­der Barr dur­ing the in­ves­ti­ga­tion in 1988 into the bomb­ing of Pan Am Flight 103 over Locker­bie, Scot­land, the for­mer at­tor­ney gen­eral re­sponded with one word: “Ter­rific.”

If he is con­firmed, the first days and weeks of a Barr ten­ure are likely to bring a host of chal­lenges, any one of which would prob­a­bly de­fine an en­tire term in any other ad­min­is­tra­tion.

As Barr pre­pares for Tues­day’s hear­ing, the pres­i­dent is weigh­ing a test of ex­ec­u­tive power: whether to de­clare a na­tional emer­gency that would al­low him to by­pass Con­gress and tap bil­lions in fed­eral money to build a long-promised wall along the U.S.-Mex­i­can bor­der – a pos­si­ble path to­ward end­ing a shut­down of the fed­eral gov­ern­ment. The move is all but cer­tain to prompt a le­gal chal­lenge from Democrats that would re­quire the Jus­tice Depart­ment to ar­gue the pres­i­dent’s case.

There are ques­tions about whether Trump – as a sit­ting pres­i­dent – could be sub­ject to in­dict­ment, given the crim­i­nal in­ves­ti­ga­tions that claimed some of his for­mer top aides. The Jus­tice Depart­ment has taken the po­si­tion that such a pros­e­cu­tion would un­con­sti­tu­tion­ally in­ter­fere with any pres­i­dent’s ca­pac­ity to run the gov­ern­ment. This month, new House Speaker Nancy Pelosi, D-Calif., de­clared the propo­si­tion an “open dis­cus­sion.”

“I think you have to go back to the Nixon era to ap­pre­ci­ate the is­sues await­ing a new at­tor­ney gen­eral,” said David We­in­stein, who served for more than a decade as a fed­eral prose­cu­tor in Mi­ami.

ALEX BRAN­DON/AP

At­tor­ney gen­eral nom­i­nee Wil­liam Barr, right, met with law­mak­ers, in­clud­ing Sen. John Cornyn, R-Texas, on Wed­nes­day.

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