WASHINGTON — Justice Department leaders sought to downplay a controversial position taken by President Donald Trump’s pick to be attorney general, who argued earlier this year that the president can’t be investigated for obstructing justice. Key Senate Democrats say the revelation might doom the nomination.
William Barr, whom Mr. Trump nominated this month to run the Justice Department, sent an unsolicited letter to Deputy Attorney General Rod Rosenstein in June arguing that special counsel Robert Mueller shouldn’t be allowed to investigate and “interrogate” Mr. Trump for obstruction of justice. If confirmed, Mr. Barr would be in charge of Mr. Mueller, unless it was deemed that Mr. Barr had a conflict of interest and he recused himself.
“Mueller’s obstruction theory is fatally misconceived” and “premised on a novel and legally insupportable reading of the law,” Mr. Barr, who served as attorney general under President George H.W. Bush, wrote in the letter. “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.”
The letter was included in a package of materials that Mr. Barr and the Justice Department sent to the Senate Judiciary Committee, which will consider his nomination.
Mr. Mueller is investigating Russia’s interference in the 2016 U.S. election, whether Mr. Trump or any of his associates conspired with Russia and whether Mr. Trump has obstructed justice. In particular, Mr. Mueller has been examining Mr. Trump’s efforts to get then-FBI Director James Comey to drop an investigation into his first national security adviser, Michael Flynn. Mr. Mueller also is investigating whether Mr. Trump’s decision to fired Mr. Comey in May 2017 constitutes obstruction of justice.
Mr. Rosenstein told reporters during a news conference Thursday that Mr. Barr’s letter represented his personal opinion and wasn’t based on the facts of Mr. Mueller’s investigation. Mr. Rosenstein said Mr. Barr didn’t request confidential information about the probe from the department and wasn’t given any.
“The investigation is being conducted in accordance with the department regulation and nothing anybody says is going to affect that,” Mr. Rosenstein said.
Regardless, Democrats pounced on the position taken by Mr. Barr to raise doubts about whether he should be confirmed.
“This document was not written years ago — it was written six months ago,” said Sen. Dianne Feinstein of California, the top Democrat on the Judiciary Committee. “We need answers as to why Mr. Barr proactively drafted this memo and then shared it with the deputy attorney general and President Trump’s lawyers.”
“There’s no reason for a lawyer in private practice to do this unless he was attempting to curry favor with President Trump and convey that he would protect the president,” Ms. Feinstein added.
Senate Minority Leader Chuck Schumer said, “Barr’s memo reveals that he is fatally conflicted from being able to oversee the special counsel’s investigation and he should not be nominated to be attorney general.”
“Since Mr. Barr hasn’t been formally nominated yet, the president must immediately reconsider and find another nominee who is free of conflicts and will carry out the duties of the office impartially,” Mr. Schumer said.
But Democrats won’t be able to block Mr. Barr’s nomination on their own and Republicans have so far been unified in their support of him.
If confirmed, Mr. Barr would replace Acting Attorney General Matthew Whitaker. Mr. Whitaker was cleared by ethics officials at the Justice Department to oversee Mr. Mueller’s investigation, despite his earlier public criticism of the probe.
First Published: December 21, 2018, 3:30 a.m.
