After the Mueller investigation ended in a whimper later that year, the obstruction issue disappeared. Barr resigned after the 2020 election, citing President Trump’s efforts to overturn his attorney general. But six years after his memo, the Supreme Court finally vindicated Barr’s legal reasoning and rejected Mueller’s in a lawsuit arising from the January 6, 2021, Capitol riot. there’s a possibility that. This story has a lesson about the unpredictability of the law, as well as insights for judges grappling with the scope of prosecutorial power in political systems.
If possible, I want you to remember 2018. Mueller was investigating allegations that the Trump campaign secretly colluded with Russia during the 2016 election. Although he was never charged with conspiracy, Mueller conducted a thorough investigation into whether Trump committed a crime by obstructing the investigation. That included asking then-FBI Director James B. Comey to cut back on Michael Flynn, who briefly served as Trump’s national security adviser. Barr’s memo argued that Mueller’s view that Trump committed obstruction “is premised on a novel and legally untenable interpretation of the law.”
Congress passed a controversial 2002 law (in legal parlance, 18 U.S.C. 1512(c)) targeting people who shredded documents to avoid subpoenas after the Enron corporate fraud scandal. there was. The law prohibits the “unauthorized” alteration or destruction of “records, documents, or other objects” to impair their “possibility of use in official proceedings,” with penalties of up to 20 years. It also adds a prohibition on “other” acts of sabotage. or influence litigation.
The law, Barr wrote in a 2018 memo: exclusively Limited to acts of destroying evidence. ” But, as it turned out correctly, he warned that Mr. Mueller was attempting to give a “new, open-ended interpretation” to § 1512(c) based on the “elsewhere” clause, making the law “We will change this to a comprehensive provision that prohibits all actions that affect legal proceedings in the following cases.” It was done with improper motives. Barr said that interpretation took the statute out of its context and ignored its text and structure. It would have a “staggering” impact on the government.
From now on, the Supreme Court will have the say. Apparently unpersuaded by Barr’s reasoning, the Biden administration’s Justice Department charged about 350 of the 1,300 defendants in the Capitol riot case with disrupting a joint session of Congress and violating Section 1512(c). prosecuted a person. One defendant objected to the application of the law to him. Fisher v. United Statesreached the Supreme Court for oral argument on Tuesday.
Attorney General Elizabeth B. Preloger, who worked on the Mueller investigation, argued that 1512(c) goes far beyond evidence tampering. Any She acknowledged that any attempt to disrupt current or future legal proceedings, including non-violent protests, could be targeted. A majority of the justices, including Ketanji Brown Jackson, who was appointed by President Biden, found that the law could apply to practices that are vastly different from the kinds of practices it was drafted to prohibit in the wake of the Enron scandal. He seemed skeptical.
Preloger assured the judge that the law’s “unfair” requirement would prevent abuse of the law. But Barr’s memo warned that “the court has uncovered much confusion” regarding the term. Based on Mueller’s theory, Barr said that if Mueller determines that Trump has malicious intent, Trump’s controversial conduct as president aimed at influencing the Justice Department would be considered a felony. I was concerned that it might become. That would be a subjective and political conclusion. Barr argued that historically, corrupt proceedings have meant something more specific: “undermining the integrity of a decision maker or undermining evidence.”
Barr’s points also foreshadowed the issue of presidential privilege that the Supreme Court will consider this week. Trump’s lawyers plan to argue Thursday that “official acts” he took as president cannot be prosecuted criminally, based on the logic of a 1982 Supreme Court decision that prohibited presidential conduct. Civil matter Lawsuits against the president for official acts. The government (represented again by Mueller investigation veteran Michael Dreven) will argue that there is no such immunity.
Dreeben’s brief states that Trump “has not argued, and could not plausibly argue, that the Constitution empowers the President to carry out acts prohibited by the obstruction statute.” There is. But Barr realized in 2018 that this wasn’t true. Attorneys General, both past and future, were deeply concerned that defining obstruction too broadly would violate the president’s constitutional duties. After all, an important part of the president’s work “It’s about making decisions that ‘influence’ the proceedings,” he said. Countless lawsuits are underway at the same time in the executive branch departments overseen by the president, who often attempts to influence Congress. If that influence itself could be a crime, based on a subjective judgment of the president’s mental state, this would seem to suggest that presidential immunity is necessary for the government to function. Dew.
Barr’s preferred solution to this constitutional problem was to simply constrain prosecutors’ definition of implausible interference under § 1512(c). As Barr explained, “If the president intentionally destroys or falsifies evidence, perjures witnesses, or induces witnesses to change their testimony, he is just as guilty of obstruction as anyone else.” Barr wrote that the obstruction law, read correctly, “in no way” violates the president’s constitutional powers.
One problem for the Biden administration is that it is asking judges to uphold a blanket interpretation of Section 1512(c). at the same time He tells them that presidential privilege is not necessary. It is difficult to see how both of these positions can survive.
Barr’s notes help explain the subtle connections between the two. fisher Obstruction cases and presidential immunity cases. The more extravagantly prosecutors interpret criminal laws like 1512(c), the greater the need for presidential immunity to prevent hardline prosecutors from overriding the presidency. But if the Supreme Court continues to suppress prosecutors’ innovative legal theories, this is likely what will happen. fisherThat would make presidential privilege less likely to be criminalized in the first place, weakening the need for immunity.
Poorly drafted obstruction laws play a surprisingly prominent role in American politics. This intensifies the Mueller investigation that dominated President Trump’s first two years in office, polarized the country and radicalized many conservatives against the “deep state” without bringing any charges of collusion. It was useful. Later, it was put to new use in response to violent riots that disrupted the transfer of power and humiliated the country. These two episodes capped Barr’s experience as a Trump official. If the Supreme Court rightfully affirms his 2018 analysis in June, it would be a tragic kind of vindication.
