A Message Of Hope

For Christians, Christmas is perennially a season of hope, so it seems an appropriate time of year to offer a message of hope to conservatives generally. In the comments to recent articles regarding the ongoing Russia Hoax a note of resignation and even dejection has been noticeable. And yet even as the assault on our constitutional order continues (and I use this phrase advisedly) there are, I believe, positive developments--even reasons for cautious good cheer.

The most obvious positive result is to be found in the results of the midterm elections. True, the GOP lost the House, yet on the positive side Paul Ryan--who played a key role in slowing down the House investigations into the Russia Hoax and even, as it turns out, the initial dissemination of the Clinton campaign's "dossier"--is gone. That alone is a positive development, as is the emergence of a more unified Republican caucus.

On the Senate side the news is even better. The GOP majority has been expanded--an historically unlikely achievement. Traitorous members have been discarded--McCain, Flake, Corker--and replaced by either more conservative new senators or new senators who owe their election to Trump's remarkable campaign effort and who will therefore be in his debt. This bodes well for confirmations, both of judges--including very possibly another seat on the Supreme Court--but also for perhaps the key cabinet position: the confirmation of a new Attorney General to replace the feckless Jeff Sessions.

Already, in that regard, we have good news. Matt Whitaker, the acting AG, has been cleared by an internal ethics review at DoJ to supervise Team Mueller. Of course, emboldened by their success with Sessions, the usual Democrat suspects brought forward the by now standard demands for recusal, citing Whitaker's past criticisms of Mueller. Whitaker, despite anonymous DoJ sources suggesting recusal out of "an abundance of caution," wisely and out of a strong sense of principle, refused to recuse. The notion that anyone who has paid attention to ongoing events in the public life of the nation and who has both an opinion and the gumption to express that opinion, should recuse himself from a position of authority is too bankrupt for serious consideration.

The stage is now set for Whitaker to play an active role in oversight of Team Mueller. If the Democrats have a problem with that, there is a ready solution. They can try their luck with Bill Barr by allowing his confirmation as AG to proceed expeditiously.


Barr is, as former AG Michael Mukasey has written, The Phony Attack on William Barr, "probably the best-qualified nominee for U.S. attorney general since Robert Jackson in 1940. ... Mr. Barr has already served as attorney general under George H.W. Bush, as well as assistant attorney general in charge of the Office of Legal Counsel [OLC], the authoritative voice within the Justice Department on issues of law throughout the government."

Beyond his obvious qualifications, Barr has demonstrated over the past few years a degree of principle and even courage in his concern for the public weal that recommend him for the position of Attorney General. For a lawyer of his accomplishments, at his stage in both his life and his career, to have remained silent would have been easy. Instead, he has spoken out forcefully regarding what he has been able to discern of the direction that Mueller has been leading his team of Clinton partisans. Even more notable in a way, Barr took the unusual step of embodying his views not in an op-ed piece but instead in a tightly reasoned 19 page memo to Rod Rosenstein and Stephen Engel (the Ass't AG currently in charge of OLC).

In this memo, written as recently as June, 2018, Barr takes Mueller to task for what Barr describes as a theory of obstruction of justice (regarding the firing of James Comey) that is "fatally misconceived." Mueller's theory, says Barr, is "premised on a novel and legally insupportable reading of the law." And he goes on to examine Mueller's theory in great detail, analyzing both the relevant statutory law as well as the past positions on obstruction that DoJ itself has taken. It's simply not possible in a blog to get into the full details of Barr's analysis (I offer some excerpts in the Addendum), but it's a measure of Barr's awareness of what's going on and what's at stake that he offers--in addition to dense textual analysis--such passages as this:

In today's world, Presidents are frequently accused of wrongdoing. Let us say that an outgoing administration -- say, an incumbent U.S. Attorney -- launches a[n] "investigation" of an incoming President. The new President knows it is bogus, is being conducted by political opponents, and is damaging his ability to establish his new Administration and to address urgent matters on behalf of the Nation. It would neither be "corrupt" nor a crime for the new President to terminate the matter and leave any further investigation to Congress. There is no legal principle that would insulate the matter from the President's supervisory authority and mandate that he passively submit while a bogus investigation runs its course.

Mueller should get on with the task at hand and reach a conclusion on collusion. In the meantime, pursuing a novel obstruction theory against the President is not only premature but -- because it forces resolution of numerous constitutional issues -- grossly irresponsible.

I urge all readers to at least peruse the Addendum, even if you may feel that the full 19 pages of legal analysis are beyond you, in order to get the measure of the type of mind Barr possesses. He is not simply a career prosecutor like Mueller (who has repeatedly demonstrated abysmal investigative instincts)--he is a man with a keen sense of the importance of our constitution and who has thought deeply on it.

Barr's sense of public duty and principle as well as his courage in expressing views that are bound to be unpopular with the Washington establishment that knows him well, speaks well of his character. Predictably, the release of this memo have been greeted with howls of outrage and calls for his preemptive recusal from all matters concerning Team Mueller. I'm not much of one for predictions, but in this case I'll go out on a limb a bit. I predict that Barr will refuse to offer any sort of preemptive pledge of recusal, and I further predict that, when confirmed, he will not recuse himself but will instead examine Team Mueller's legal theories and their prosecutorial practices with a critical eye focused on justice.

Those qualities of principle, sense of public duty, and courage were on display late last year, as noted by the New York Times, when the paper questioned former AGs regarding Trump's continued calls for investigation of Hillary Clinton:

Of 10 former attorneys general contacted Tuesday, only one responded to a question about what they would do in Mr. Sessions’s situation. 

“There is nothing inherently wrong about a president calling for an investigation,” said William P. Barr, who ran the Justice Department under President George Bush. “Although an investigation shouldn’t be launched just because a president wants it, the ultimate question is whether the matter warrants investigation.” 

Mr. Barr said he sees more basis for investigating the uranium deal than any supposed collusion between Mr. Trump and Russia. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” he said.

Regarding the utterly predictable and unprincipled calls for Barr's recusal or rejection as AG, former AG Mukasey stated, with a touch of irony:

The logical implication of opposing Mr. Barr’s appointment or seeking his recusal because he has opined on a matter of substantial public concern is that the only people suitable for public office are those who are ignorant of public issues or indifferent to them. That in itself should silence his critics.

All this, I submit, offers reason for hope.

ADDENDUM: Excerpts from Barr's Memorandum. Each paragraph below should be considered as disconnected from any other passage in the 19 page memorandum.


... if a DOJ investigation is going to take down a democratically-elected President, it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime -- not a debatable one. It is time to travel well-worn paths; not to veer into novel, unsettled or contested areas of the law; and not to indulge the fancies by overly-zealous prosecutors.

Mueller's premise that, whenever an investigation touches on the President's own conduct, it is inherently "corrupt" under section 1512 for the President to influence that matter is insupportable. In granting plenary law enforcement powers to the President, the Constitution places no such limit on the President's supervisory authority. Moreover, such a limitation cannot be reconciled with the Department's longstanding position that the "conflict of interest" laws do not, and cannot, apply to the President, since to apply them would impermissibly "disempower" the President from supervising a class of cases that the Constitution grants him the authority to supervise.

The crux of Mueller's position is that, whenever the President exercises any of these discretionary powers ["the power of appointment, removal, and pardon"] and thereby "influences" a proceeding, he has completed the actus reus [i.e., the "guilty act"] of the crime of obstruction. To establish guilt, all that remains is evaluation of the President's state of mind to divine whether he acted with a "corrupt" motive.

... Mueller seems to be claiming that the obstruction statue effectively walls off the President from exercising Constitutional powers over cases in which his own conduct is being scrutinized. This premise is clearly wrong constitutionally.

The prospect of criminal liability based solely on the official's state of mind, coupled with the indefinite standards of "improper motive" and "obstruction," would cast a pall over a wide range of Executive decision-making, chill the exercise of discretion, and expose to intrusive and free-ranging examination of the President's (and his subordinate's) subjective state of mind in exercising that discretion.

Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such, he is the sole repository of all Executive powers conferred by the Constitution.

Because the President alone constitutes the Executive branch, the President cannot "recuse" himself. ... the President cannot take a holiday from his responsibilities.

The Framers' idea was that, by placing all discretionary law enforcement authority in the hands of a single "Chief Magistrate" elected by the People, and by making him politically accountable for all exercises of that discretion by himself or his agents, they were providing the best way of ensuring the "faithful exercise" of these powers. ... Thus, under the Framers' plan, the determination whether the President is making decisions based on "improper" motives or whether he is "faithfully" discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process.

For that reason, the President's exercise of supervisory authority over such a case ["dealing with his own interests"] does not amount to "corruption." It may be in some cases politically unwise; but it is not a crime.

In today's world, Presidents are frequently accused of wrongdoing. Let us say that an outgoing administration -- say, an incumbent U.S. Attorney -- launches a[n] "investigation" of an incoming President. The new President knows it is bogus, is being conducted by political opponents, and is damaging his ability to establish his new Administration and to address urgent matters on behalf of the Nation. It would neither be "corrupt" nor a crime for the new President to terminate the matter and leave any further investigation to Congress. There is no legal principle that would insulate the matter from the President's supervisory authority and mandate that he passively submit while a bogus investigation runs its course.

Mueller should get on with the task at hand and reach a conclusion on collusion. In the meantime, pursuing a novel obstruction theory against the President is not only premature but -- because it forces resolution of numerous constitutional issues -- grossly irresponsible.