Table of Contents

Memos, Articles, Public Comments 1989 – 2016

Memo: “Congressional Requests for Confidential Executive Branch Information” (1989)…………….….3
Memo: “Common Legislative Encroachments on Executive Authority” (1989) ……………………….….5
Report: “Final Report on the National Commission for the Separation of Powers” (1998) ………….…….7
Interview: “William P. Barr Oral History” (2001)……………………………………………...…………..9

Op-Eds on 2016 Election and Trump-Russia

“James Comey Did The Right Thing” (2016) ……………………………………………..………………..11

“Trump Was Right to Fire Sally Yates,” Barr (2017) ………………………………………….…………...10
“Trump Made the Right Call on Comey” (2017) ………………………………………………….………..11
“As Mueller Builds His Russia Special-Counsel Team, Every Hire is Under Scrutiny” (2017) …….……..12

2018 Obstruction Memo

On Interviewing Trump……………………………………………………………………..……….…...…..14
On Mueller’s Investigation……………………………………………………………….….…….…………14
On Obstruction & Presidential Powers …………………………………………………….……….………..15
On Corrupt Intent…………………………………………………………………………….…….……….. 16
On Firing Comey………………………………………………………………………………..………....…17
On “Letting [Flynn] Go”……………………………………………………………………………….…….17

2019 Confirmation Hearing

On Executive Privilege……………………………………………………………………………...…….…18
On Firing Independent Counsels for “Good Cause”…………………………………………………………18
On Disclosure of Mueller’s Report……………………………………………….………………….………19

Concluding Questions

What if Trump’s Obstruction is the Reason Mueller “Did Not Establish” Collusion?.....................................21
Will 1989 Bill Barr Be Redacting the 2019 Mueller Report?...........................................................................24

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“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 “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 … grossly irresponsible.”

- William P. Barr, June 2018

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 Memos, Articles, Public Comments 1989 – 2016

Legal Memo: “Congressional Requests for Confidential Executive Branch Information”

Author: William P Barr (June 19, 1989)
Full text: https://www.politico.com/f/?id=00000162-da1f-d817-a7f2-db1ff6fc0001

Synopsis: Argues that, prior to an official claim of executive privilege made by the President, the head of
an executive agency may pre-emptively claim executive privilege to avoid disclosing information requested
by Congress. This pre-emptive claim of privilege can be legitimately made for a wide variety of reasons,
including the protection of communications between a President and his advisers, the protection of state
secrets, and for law enforcement reasons. No formal claim by the President or on the President’s behalf
need be made in order to withhold privileged information from Congress, except in response to a
congressional subpoena.
1. “While the considerations that support the concept and assertion of executive privilege
apply to any congressional request for information, the privilege itself need not be
claimed formally vis-a-vis Congress except in response to a lawful subpoena…” (p.
154)

2. Three areas of legitimate executive privilege: “state secrets, law enforcement, deliberative
processes,” including communications between the President and his advisers. (p. 154)

3. It necessarily follows -- and the Supreme Court so held in United States v. Nixon -- that
communications among the President and his advisers enjoy "a presumption
privilege" against disclosure in court.... These reasons for the constitutional privilege
have at least as much force when it is Congress, instead of a court, that is seeking
information….When the Supreme Court held that the need for presidential
communications in a criminal trial of President Nixon's close aides outweighed the
constitutional privilege, an important premise of its decision was that it did not believe that
"advisers will be moved to temper the candor of their remarks by the infrequent occasions
of disclosure because of the possibility that such conversations will be called for in the
context of a criminal prosecution." By contrast, congressional requests for executive
branch deliberative information are anything but infrequent. Moreover, compared to a
criminal prosecution, a congressional investigation is usually sweeping; its issues are
seldom narrowly defined, and the inquiry is not restricted by the rules of evidence....For
all these reasons, the constitutional privilege that protects executive branch
deliberations against judicial subpoenas must also apply, perhaps even with greater
force, to Congress' demands for information. (pp. 156-57).

4. Senate Select Committee thus establishes Congress' duty to articulate its need for particular
materials -- to 'point to... specific legislative decisions that cannot responsibly be made
without access to materials uniquely contained in' the privileged document it requests. (p.
159)

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5. In some cases, however, the executive branch official may resist supplying some or all of
the requested information either because of the burden of compliance or because the
information is of a sensitive nature.... On occasion, however, the process breaks down, and
a subpoena is issued. At that point, if further negotiation is unavailing, it is necessary
to consider asking the President to assert executive privilege. (pp. 160-1)

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 Legal Memo: “Common Legislative Encroachments on Executive Branch Authority”
Author: William P Barr (July 27, 1989)
Full text: https://www.justice.gov/file/24286/download

Synopsis: Discusses nine common areas in which congressional actions “encroach” on the authority of the
executive branch and recommends strategies for executive agencies to “consistently and forcefully resist
such congressional incursions.” The resulting view is one that attributes sweeping power to the executive
branch, ultimately in virtue of the unitary power of the Chief Executive or President of the United States.
Relevant topics discussed include: (1) the scope of executive privilege and how to use claims of privilege
to shield the Presidency from Congressional disclosure requests; (2) strategies for resisting “concurrent
reporting” legislation, which require an executive agency to report findings, conclusions, or other
information to congress at a designated point in an executive function; (3) the alleged sole power of the
President to oversee foreign affairs without congressional interference; (4) the alleged power of the
President, in virtue of his status as Chief Executive, to fire an Independent Counsel, direct an Independent
Counsel to take up or drop a case, and to end any Independent Counsel investigation he sees fit.

On Executive Privilege
Efforts by Congress to obtain privileged information from the executive branch are
unconstitutional encroachments on the President’s responsibility to protect certain information,
and therefore should be resisted.
1. “In addition to overt efforts to obtain privileged information, Congress often includes in
bills language that purports to require that “all information” or “all reports” regarding a
specific subject be made available to a particular congressional committee or other entity
that is not part of the executive branch. Such efforts should be resisted, however, as an
unconstitutional encroachment on the President’s constitutional responsibility to
protect certain information. Therefore, it should always be recommended that such
provisions include the phrase “to the extent permitted by law.”…. The President must
retain the authority to withhold in the public interest information whose disclosure might
significantly impair the conduct of foreign relations, the national security, the deliberative
processes of the executive branch or the performance of its constitutional duties.” (p. 254)

On Concurrent Reporting Requirements

Laws requiring executive branch to concurrently report certain information to Congress should be
opposed by the executive branch. If such reporting requirements are instituted, executive branch
should read them as only applying to “final” recommendations and allow the President to
personally approve what information does and does not get reported.
2. “Concurrent reporting requirements may breach the separation of powers by disrupting the
chain of command within the executive branch and preventing the President from
exercising his constitutionally guaranteed right of supervision and control over executive
branch officials. Moreover, such provisions infringe upon the President’s authority as head
of a unitary executive to control the presentation of the executive branch’s views to

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 Congress. Accordingly, such concurrent reporting requirements should be opposed.
However, if enacted, the requirement to transmit reports to Congress should be construed
as applying only to “final” recommendations that have been reviewed and approved
by the appropriate superiors within the executive branch, including OMB, and if
necessary, the President.” (p. 255)

On Presidential Authority Over Foreign Affairs

3. “Accordingly, provisions that would prohibit officers or employees of the United
States government from soliciting funds or material assistance from foreign
governments (including any instrumentality or agency thereof), foreign persons, or
United States persons, for the purpose of furthering any military, foreign policy, or
intelligence activity are unconstitutional. Similarly, any provision that purports to
prohibit, or to require, consultation between the United States and another sovereign nation
would be unconstitutional. No limitations on the President’s authority to discuss certain
issues with foreign governments, or to recommend or concur in courses of action taken
by other nations, should be sanctioned” (p. 257)

On Presidential Hiring/Firing Power, Including Independent Counsels

4. “We recognize that the Court upheld restrictions on the executive branch’s authority to
remove an Independent Counsel in Morrison v. Olson. The Court stated that the
constitutionality of a “for cause” removal provision turns on whether the removal
restrictions “impede the President’s ability to perform his constitutional duty” and that the
functions of the officer whose removal is limited must be analyzed in that light. Id. at
691…. , the power of the executive branch will be best preserved by vigorous
opposition to such restrictions.” (p. 253)

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 Report: “Final Report on the National Commission for the Separation of Powers”
Authors: Various law professors, experts, and former cabinet appointees, including William Barr (1998)
Text:https://www.judiciary.senate.gov/imo/media/doc/William%20Barr%20Senate%20Questionnaire%20Attachme
nt%2012(b).pdf

On Executive Privilege
1. “Whenever Congress exercises its power to “check and balance” the actions of the
executive through investigation and corrective legislation, one of the President’s main
defenses has been invoking executive privilege. That is the President’s right to withhold
documents and testimony concerning the content of communications with his top-level
staff and other executive branch officials relating to official business. It is strongest where
national security is concerned, weakest where Congress is investigating allegedly illegal
or unethical actions by executive branch officials.”

2. “In the Commission’s view, the waivers of executive privilege by modern Presidents,
including Bill Clinton, are doing serious long-term damage to the ability of Presidents
to perform their duties. When Presidents dare not seek confidential advice for fear it will
not remain confidential, when Presidential aides and cabinet members are reluctant to offer
advice for the same reason, when all top executive branch officials are loath to write
memoranda or make records of their consultations with one another, Presidents are ill-
equipped to exercise their full executive power. Moreover, historians and biographers will
lose their most important source materials. The Commission therefore recommends that
Congress reduce its demands on the Presidency concerning its internal deliberations,
and that Presidents invoke executive privilege to resist unreasonably invasive
demands from Congress.”

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 Interview: “William P. Barr Oral History”
Authors: Interviewers & William Barr (April 5th, 2001)
Full Text: https://millercenter.org/the-presidency/presidential-oral-histories/william-p-barr-oral-history-assistant-
attorney-general

Summary: William Barr reflects on law-related issues, from the war on drugs to the Gulf War, as
a major figure in the Department of Justice.

On the Iran-Contra Pardons

Barr: I don’t remember, I must admit. I asked some of my staff to look into the indictment that
was brought, and also some of the other people I felt had been unjustly treated and whether they
felt that they would have been treated this way under standard Department guidelines. I don’t
remember going through the pardon office, but I did ask some of the seasoned professionals
around the Department about this, asked them to look into it. Based on those discussions, I went
over and told the President I thought he should not only pardon Caspar Weinberger, but
while he was at it, he should pardon about five others.

Meador: Did you oppose any of those pardons in the last couple or three months of the
administration?

Barr: The big ones obviously were the Iran Contra ones. I certainly did not oppose any of them.
I favored the broadest— There were some people arguing just for Weinberger, and I
said, No, in for a penny, in for a pound. Elliot Abrams was one I felt had been very unjustly
treated. I do remember there was some controversy over some pardons, but I can’t remember
how they came down. The Justice Department was playing our usual role—naysayers.

On Independent Counsels & Prosecutorial Independence

Barr: One of the things I took away from the Department of Justice is what awesome power
prosecutorial power is. There’s no other power like it in government. Maybe the power to shoot a
foreigner in war, but the prosecutive power destroys lives. And who makes the judgment to bring
a case, to indict? Who makes that judgment? Frequently it’s some young person who has a lot of
vested interest in a particular case. Who’s supervising that person? How does that person get the
perspective and the judgment and seasoning in life to take a broad view? I think it’s a real problem
now.

I think the other big problem is this notion that has gained currency that there’s something
wrong about political officials reviewing cases. Actually this has largely been precipitated by
the liberal critics of the Department of Justice and by the Democrats on the Hill. It’s very
destructive to personal liberty because what they’re trying to do is to say that political-level

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people shouldn’t be reviewing cases. You leave it to the professionals, leave it to the line
attorney. If someone second-guesses a line attorney, then there’s something wrong…..

Meador: I think this tendency goes way back, to view the staff, lower-level decisions, as being
the accurate one and anything decided higher up the line as somehow improper. I’ve seen that a
long time.

Barr: Well, that’s a very bad thing. But I think it started picking up after Watergate, the
idea that the Department of Justice has to be independent. And from there you get that it
should be even independent of the political appointees who are there, and that somehow the
career person has some kind of—My experience with the Department is that the most political
people in the Department of Justice are the career people, the least political are the political
appointees. That’s an overstatement to dramatize a point. But I found that a lot of the career
people, when I got pressing them on something, would start giving me political calculus. And I
would say, That’s not your job. I don’t want your political advice. I don’t want you to start
bringing in political considerations.

I think that things are getting worse in this regard because as the average age of prosecutors
falls—coupled with the tendency for political appointees to be afraid to review anything—
there is a lot of injustice being done in the law enforcement function.

Baker: You’re speaking here about the potential abuse for prosecutorial discretion. Is this tied
in, then, to some of your long-stated opposition to the special prosecutor’s office because it
really does remove that discretionary authority from some political accountability?

Barr: That’s exactly it. You’re absolutely right. The independent counsel statute is a
manifestation of this that’s made worse by the fact that you take the prosecutor and by
statute give him a single focus. So you almost remove any perspective or resource
constraint on the person. No resource constraint, single perspective, a political environment
where you’re almost driven to find something or else you’ve wasted—To justify your
existence. And no ultimate accountability.

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 Op-Eds & Comments on 2016 Election and Trump-Russia Investigation

Op-Ed: “James Comey Did the Right Thing”, Washington Post

Author: William Barr (October 31, 2016)
Full Text: https://www.washingtonpost.com/opinions/james-comey-did-the-right-thing/2016/10/31/7fcf0018-9f84-
11e6-a44d-cc2898cfab06_story.html?utm_term=.a99d54a36f6b

Synopsis: Defends FBI Director James Comey’s decision to announce the re-opening of the
Clinton email investigation days before the November 2016 presidential election.

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 Op-Ed: “Former Attorney General: Trump Was Right to Fire Sally Yates”, Washington Post
Author: William Barr (February 1st, 2017)
Full Text: https://www.washingtonpost.com/opinions/former-attorney-general-trump-was-right-to-fire-sally-
yates/2017/02/01/5981d890-e809-11e6-80c2 30e57e57e05d_story.html?utm_term=.4e62fe2d4231

Synopsis: Defends President Donald Trump’s decision to fire Acting Attorney General Sally Yates
for directing the DOJ not to defend Trump’s Muslim ban in court.

On Presidential Power
“Presidential powers are not exercised by a body or group. The Constitution vests “all executive
power” in one and only one person — the president. An attorney general’s duty is to render her
opinion and honest advice; she cannot set herself up as a judge overruling the president’s decision.
The president need not “convince” his subordinate that his decision reflects the best view of
the law.”

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Op-Ed: “Former Attorney General: Trump Made the Right Call on Comey”, Washington
Post
Author: William Barr (May 12th, 2017)
Text: https://www.washingtonpost.com/opinions/former-attorney-general-trump-made-the-right-call-on-
comey/2017/05/12/0e858436-372d-11e7-b4ee-434b6d506b37_story.html?utm_term=.7ad843e851e0

Synopsis: Defends President Donald Trump’s decision to fire FBI Director James Comey. Argues
that Comey’s firing was not intended to impede the Russia investigation: “Comey’s removal
simply has no relevance to the integrity of the Russian investigation as it moves ahead.”

On the Ultimate Authority of the Attorney General

“With an investigation as sensitive as the one involving Clinton, the ultimate decision-making is
reserved to the attorney general or, when the attorney general is recused, the deputy attorney
general. By unilaterally announcing his conclusions regarding how the matter should be resolved,
Comey arrogated the attorney general’s authority to himself.”

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 Op-Ed: “As Mueller Builds His Russia Special-Counsel Team, Every Hire Is Under Scrutiny”
Washington Post
Author: Matt Zapotosky (July 5th, 2017)
Full Text: https://www.washingtonpost.com/news/post-politics/wp/2017/07/05/as-mueller-grows-his-russia-special-
counsel-team-every-hire-is-under-scrutiny/?utm_term=.9e0521364f0b

Barr on the composition of Mueller’s prosecution team:

“In my view, prosecutors who make political contributions are identifying fairly strongly with a
political party,” said William P. Barr, who served as attorney general under George H.W. Bush.
“I would have liked to see him have more balance on this group.”

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 2018 Obstruction Memo
Memo: “Mueller’s ‘Obstruction’ Theory”
Author: William P. Barr (June 8th 2018)
Full text: https://www.documentcloud.org/documents/5638848-June-2018-Barr-Memo-to-DOJ-Muellers-
Obstruction.html

Synopsis: Argues that a President cannot commit a crime of obstructing justice solely through the
exercise of the presidential powers granted by the constitution, such as hiring or firing an executive
branch prosecutor, ordering a prosecutor to stop or start an investigation, or pardoning witnesses,
even when such actions are taken in order to influence an ongoing investigation into alleged
wrongdoing by the President himself. Defends a principle of “non-reviewability” of Presidential
prosecution and pardoning decisions, according to which inferior executive branch officials may
not attribute “corrupt” motives to a President for his hiring, firing, prosecuting, or pardoning
decisions. Also criticizes the Mueller investigation itself, claims that Mueller must not be allowed
to request or subpoena Trump for an interview on obstruction of justice, and argues that Mueller
cannot charge Trump with obstruction of justice if Mueller is unable to establish collusion first.

On Interviewing Trump
1. “Mueller should not be permitted to demand that the President submit to interrogation
about alleged obstruction.” (p. 1)
2. “Mueller’s overly-aggressive use of the obstruction laws should not be embraced by the
Department and cannot support interrogation of the President to evaluate his subjective
state of mind.” (p. 9).

On Mueller’s Investigation
1. I know you will agree that, 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
(p. 3)

2. “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 “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

14
 supervisory authority and mandate that he passively submit while a bogus investigation
runs its course.” (p. 12)

3. “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.” (p. 13)

4. But Mueller’s proposed regime would mount an especially onerous and unprecedented
intrusion on Executive authority.” (p. 15)

On Obstruction and Presidential Powers

1. “Thus, under [Mueller’s] theory, simply by exercising his Constitutional discretion in a
facially-lawful way — for example, by removing or appointing an official; using his
prosecutorial discretion to give direction on a case; or using his pardoning power -- a
President can be accused of committing a crime based solely on his subjective state of
mind. As a result, any discretionary act by a President that influences a proceeding can
become the subject of a criminal grand jury investigation, probing whether the President
acted with an improper motive” (p. 2).

2. “However, the Constitution vests plenary authority over law enforcement proceedings
in the President, and therefore one of the President’s core constitutional authorities is
precisely to make decisions “influencing” proceedings. In addition, the Constitution vests
other discretionary powers in the President that can have a collateral influence on
proceedings — including the power of appointment, removal, and pardon.” (p. 9).

3. “Under the Constitution, the President’s authority over law enforcement matters is
necessarily all-encompassing, and Congress may not exscind certain matters from the
scope of his responsibilities. The Framers’ plan contemplates that the President’s law
enforcement powers extend to all matters, including those in which he had a personal
stake, and that the proper mechanism for policing the President’s faithful exercise of that
discretion is the political process – that is, the People, acting either directly, or through
their elected representatives in Congress.” (p. 10)

4. “The Constitution itself places no limit on the President’s authority to act on matters
which concern him or his own conduct. On the contrary, the Constitution’s grant of law
enforcement power to the President is plenary. 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. Thus, the full measure of law enforcement authority is
placed in the President’s hands, and no limit is placed on the kinds of cases subject to his
control and supervision.” (p. 11)

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 5. Further, if the actor uses lawful means of influencing a proceeding — such as asserting an
evidentiary privilege, or bringing public opinion pressure to bear on the prosecutors —
then his ultimate motives are likewise irrelevant. See Arthur Anderson, 544 U.S. at 703-
707. Even if the actor is guilty of a crime and his only reason for acting is to escape justice,
his use of lawful means to impede or in fluence a proceeding are perfectly legitimate.

On Corrupt Intent
1. “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.” (p. 11)

2. “For that reason, the President’s exercise of supervisory authority over such a case does
not amount to “corruption.” It may be in some cases politically unwise; but it is not a
crime. Moreover, it cannot be presumed that any decision the President reaches in a
case in which he is interested is “improperly” affected by that personal interest.
Implicit in the Constitution’s grant of authority over such cases, and in the Department’s
position that the President cannot be “disempowered” from acting in such cases, is the
recognition that Presidents have the capacity to decide such matters based on the
public’s long-term interest.” (p. 12)

3. In other words, the notion would be that, if an investigation was bogus, the President
ultimately had legitimate grounds for exercising his Supervisory powers to stop the matter.
Conversely, if the President had really engaged in wrong doing, a decision to stop the case
would have been a corrupt coverup. But, in the latter case, the predicate for finding any
corruption would be first finding that the President had engaged in the wrongdoing
he was allegedly trying to cover up. Under the particular circumstances here, the issue of
obstruction only becomes ripe after the alleged collusion by the President or his
campaign is established first. While the distinct crime of obstruction can frequently be
committed even if the underlying crime under investigation is never established, that is true
only where the obstruction is an act that is wrongful in itself -- such as threatening a
witness, or destroying evidence. But here, the only basis for ascribing “wrongfulness” (i.e.,
an improper motive) to the President’s actions is the claim that he was attempting to block
the uncovering of wrongdoing by himself or his campaign. Until Mueller can show that
there was unlawful collusion, he cannot show that the President had an improper
“cover up” motive.” (p. 12—13)

4. “Further, if the actor uses lawful means of influencing a proceeding — such as asserting
an evidentiary privilege, or bringing public opinion pressure to bear on the prosecutors —
then his ultimate motives are likewise irrelevant. See Arthur Anderson, 544 U.S. at 703-
707. Even if the actor is guilty of a crime and his only reason for acting is to escape
justice, his use of lawful means to impede or influence a proceeding are perfectly
legitimate.” (p. 17)

16
 5. “The authority to decide whether or not to bring prosecutions, as well as the authority to
appoint and remove principal Executive officers, and to grant pardons, are quintessentially
Executive in character and among the discretionary powers vested exclusively in the
President by the Constitution. When the President exercises these discretionary powers, it
is presumed he does so lawfully, and his decisions are generally non-reviewable….In
short, the President’s exercise of its Constitutional discretion is not subject to review for
“improper motivations” by lesser officials or by the courts.” (pp. 13-14)

On Comey’s Firing
1. “First, in removing Comey as director of the FBI there is no question that the President
was exercising one of his core authorities under the Constitution. Because the President
has Constitutional responsibility for seeing that the laws are faithfully executed, it is settled
that he has “illimitable” discretion to remove principal officers carrying out his Executive
functions.” (p. 9)
2. “Assuming arguendo that the President had motives such that, under Mueller’s theory, any
direct order by him to terminate the investigation would be considered an obstruction, what
action short of that would be impermissible? The removal of Comey is presumably being
investigated as “obstructive” due to some collateral impact it could have on a proceeding.
But removing an agency head does not have the natural and foreseeable consequence of
obstructing any proceeding being handled by that agency. How does one gauge whether
the collateral effects of one’s actions could impermissibly affect a proceeding?” (p. 18)

On “Letting [Flynn] Go”

1. “Similarly, in commenting to Comey about Flynn’s situation — to the extent it is taken as
the President having placed his thumb on the scale in favor of lenity — the President was
plainly within his plenary discretion over the prosecution function. The Constitution
vests all Federal law enforcement power, and hence prosecutorial discretion, in the
President. The President’s discretion in these areas has long been considered “absolute,”
and his decisions exercising this discretion are presumed to be regular and are generally
deemed non-reviewable.” (p. 9)

2. “On their face, the President’s comments to Comey about Flynn seem unobjectionable. He
made the accurate observation that Flynn’s call with the Russian Ambassador was perfectly
proper and made the point that Flynn, who had now suffered public humiliation from losing
his job, was a good man. Based on this, he expressed the “hope” that Comey could “see his
way clear” to let the matter go. The formulation that Comey “see his way clear,” explicitly
leaves the decision with Comey. Most normal subordinates would not have found
these comments obstructive. Would a superior’s questioning the legal merit of a case be
obstructive?” (p. 18).

17
 2019 Confirmation Hearing
Written Answers to Follow-Up Questions
January 2018
Full text:https://www.judiciary.senate.gov/imo/media/doc/Barr%20Responses%20to%20QFRs.pdf

On Executive Privilege
1. Q: When Congress requests information from the Executive Branch, how and in what
circumstances is executive privilege properly invoked? What standards and process will
you use to evaluate the legitimacy of presidential executive privilege claims?
a. RESPONSE: The Executive Branch engages in good-faith negotiation with
congressional committees in an effort to accommodate legitimate oversight needs,
while safeguarding the legitimate confidentiality interests of the Executive
Branch. This accommodation process has historically been the primary means for
successfully resolving conflicts between the branches and has eliminated the need
for an executive privilege assertion in most cases. If an assertion of executive
privilege is being considered, I will follow the established process of ensuring that
the Department thoroughly reviews the legal basis for the privilege claim, and if I
am satisfied that that assertion of the privilege would be legally permissible, I
would so advise the President in a letter that would be provided to the
requesting committee at the time it is informed of the privilege assertion.

On Firing Independent Counsels for “Good Cause”

1. Q: The Supreme Court rejected the unitary executive theory in Morrison v. Olson, 487 U.S.
654 (1988). a. Do you believe Morrison v. Olson was correctly decided?
a. RESPONSE: Morrison held that the good-cause removal restrictions on the
independent counsel were constitutionally permissible because she was an inferior
officer with limited jurisdiction. As the Supreme Court reiterated in Free Enterprise
Fund v. Public Company Accounting Oversight Board, 561 U.S. 477, 495 (2010),
Morrison concerned the “status of inferior officers” and the specific
“circumstances” of the independent counsel statute. While, as an original matter,
I thought Morrison was not correct, it is my understanding that the Supreme
Court has not overruled that decision. If confirmed, and if the issue arose, I would
need to consult with the Office of Legal Counsel and review subsequent
decisions by the Supreme Court to determine whether they have any bearing
on the decision.

2. In your view, are laws requiring the President to have “good cause” before removing heads
of independent agencies constitutional?

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 a. RESPONSE: Under the Supreme Court’s precedents, including Morrison v. Olson,
the constitutionality of such restrictions would depend on facts such as the precise
nature of the for-cause removal provision and the structure of the agency in
question.

On Disclosure of Mueller’s Report

1. Q: Do you take DOJ regulations to mean that you should release not the Mueller report,
but rather your own report?
a. RESPONSE: The applicable regulations provide that the Special Counsel will make
a “confidential report” to the Attorney General “explaining the prosecution or
declination decisions reached by the Special Counsel.” See 28 C.F.R. § 600.8. The
commentary to these regulations, which were issued by the Clinton Administration
Department of Justice, explains that the Special Counsel’s report is to be “handled
as a confidential document, as are internal documents relating to any federal
criminal investigation. The interests of the public in being informed of and
understanding the reasons for the actions of the Special Counsel will be
addressed” through the Attorney General’s reporting requirements. See 64 Fed.
Reg. 37038, 37040-41. Under the regulations, the Attorney General must “notify
the Chairman and Ranking member of the Judiciary Committees of each House of
Congress . . . Upon conclusion of the Special Counsel’s investigation.” 28 C.F.R.
§ 600.9(a)(3). The regulations further provide that the Attorney General may
publicly release the Attorney General’s notification if he or she concludes that
doing so “would be in the public interest, to the extent that release would comply
with applicable legal restrictions.” Id. § 600.9(c).
I believe it is very important that the public and Congress be informed of the results
of the Special Counsel’s work. For that reason, if confirmed, my goal will be to
provide as much transparency as I can consistent with the law, including the
regulations discussed above, and the Department’s longstanding practices and
policies. Where judgments are to be made by me, I will make those judgments
based solely on the law and Department policy, and will let no personal, political,
or other improper interests influence my decision. As I stated during the hearing, if
confirmed, I intend to consult with Special Counsel Mueller and Deputy Attorney
General Rosenstein regarding any report that is being prepared and any disclosures
or notifications that I make under applicable regulations as Attorney General
2. Do you read DOJ regulations and policy and practice to forbid any discussion of decisions
declining to indict?
a. RESPONSE: The regulations governing public discussion of a Special Counsel’s
declination decisions are discussed above in my response to Question 4(a). In
addition, the Justice Manual, § 9-27.760, cautions prosecutors to be sensitive to
the privacy and reputational interests of uncharged third parties. It is also my
understanding that it is Department policy and practice not to criticize individuals
for conduct that does not warrant prosecution.

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3. Do you believe it would be improper and/or prohibited by DOJ policy or regulations to
provide Congress or the public with any discussion or release of parts of Mueller’s report
relating to the President?
a. RESPONSE: Please see my responses to Questions 4(a) and 4(b) above.

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 Concluding Questions
What if Trump’s Obstruction is the Reason Mueller “Did Not Establish” Collusion?
On Sunday, March 24, William Barr sent a letter to the House and Senate Committees on the
Judiciary, which summarized the “principal conclusions” of Special Counsel Mueller’s
investigation into Russia’s interference in the 2016 election.
On the question of whether President Trump criminally obstructed the Russia investigation,
Barr notes that Mueller “determined not to make a traditional prosecutorial judgment.” Instead,
the Special Counsel simply outlined the evidence his investigation had gathered on the obstruction
question. Barr quotes Mueller directly: “while this report does not conclude that the President
committed a crime, it also does not exonerate him.”
However, AG Barr—in consultation with Deputy Attorney General Rod Rosenstein—
examined the evidence gathered by the Special Counsel and made his own traditional prosecution
decision: “…I have concluded that the evidence developed during the Special Counsel’s
investigation is not sufficient to establish that the President committed an obstruction-of-justice
offense.” Barr claims that his decision was made, at least in part, because the Special Counsel’s
evidence “does not establish that the President was involved in an underlying crime related to
Russian election interference.” This lack of an underlying crime, Barr argues, makes it more
difficult to prove beyond a reasonable doubt that the President acted with the requisite corrupt
intent required to charge the crime of obstruction of justice.
The reasoning Barr provides for his declination decision is strikingly similar to the
reasoning he defended 9 months earlier, in his June 8, 2018 obstruction memo. He wrote:

Under the particular circumstances here, the issue of obstruction only becomes ripe after
the alleged collusion by the President or his campaign is established first. While the distinct
crime of obstruction can frequently be committed even if the underlying crime under
investigation is never established, that is true only where the obstruction is an act that is
wrongful in itself -- such as threatening a witness, or destroying evidence. But here, the
only basis for ascribing “wrongfulness” (i.e., an improper motive) to the President’s actions
is the claim that he was attempting to block the uncovering of wrongdoing by himself or
his campaign. Until Mueller can show that there was unlawful collusion, he cannot show
that the President had an improper “cover up” motive.” (p. 12—13)

Barr therefore appears to have based his declination decision on precisely the same highly
controversial line of reasoning he defended in his obstruction memo, which he wrote long before
he had seen any of the evidence Mueller had gathered on obstruction.
This is a stunning state of affairs. To see this, consider the following three points.
First, Barr states in his March 24th letter that only “some” of Mueller’s evidence on
obstruction is currently public knowledge. Thus, for all we know, Mueller has detailed evidence
of Trump explicitly promising pardons in exchange for non-cooperation with prosecutors, or
evidence that the President directly threatened one or more witnesses with retribution, or evidence

21
that the President directed a witness to lie, or even that the President destroyed or altered evidence
relevant to the Russia investigation.
However, Barr believes that the President’s role as Chief Executive shields his actions from
being second-guessed by an inferior officer unless and until some underlying criminal conduct has
been established beyond a reasonable doubt. This is his “principle of non-reviewability.” As a
result, even if the Mueller report includes “smoking gun” evidence that Trump did one or more of
the above actions, Barr’s non-reviewability principle would lead him to attribute a good or neutral
motive to Trump’s actions rather than a corrupt one.
Second, as other commentators have pointed out, there is an underlying crime Trump may
have been trying to obstruct: the Special Counsel turned over evidence to the Southern District of
New York, which led to Michael Cohen to plead guilty in court to a hush money scheme that
implicated Donald Trump as an unindicted co-conspirator.
Perhaps more importantly, the Special Counsel charged a number of Russian intelligence
officers and Russian agencies in various illegal conspiracies to influence the presidential election
of 2016. Moreover, as the Special Counsel made clear in his detailed indictments of both the IRA
troll farm and the GRU officers, those illegal conspiracies were done primarily in order to benefit
the campaign of Donald Trump and hurt the campaign of his opponent, Hillary Clinton. So
although Trump himself has not been charged as a co-conspirator in those crimes, he was
nevertheless their primary beneficiary.
If Barr’s principle of non-reviewability implies a prosecutor assessing the President’s
motives for interfering with the Russia investigation may take into account the established fact that
the President was the primary beneficiary of the very Russian criminal conspiracy being
investigated, then I say so much the worse for Barr’s principle of non-reviewability.1
Finally, if Barr did in fact reach his declination decision by following the reasoning
outlined in his 2018 obstruction memo, we must consider the following disturbing possibility.
Suppose Mueller “did not establish” that Trump or his associated criminally conspired in
the Russian interference campaign not because Mueller and his team conducted a complete,
unimpeded investigation and were simply unable to turn up sufficient evidence that such a
conspiracy occurred.
Instead, suppose Mueller did not establish Trump’s complicity in that criminal conspiracy
because the investigation was thwarted by a wide-ranging obstructive interference campaign by
President Trump. In particular, suppose Mueller’s theory was that Paul Manafort’s cooperation
really was—as some early 2018 news reports suggested—the key to unlocking sufficient evidence
for the Trump campaign’s complicity in the Russian interference conspiracy. And suppose, as

1
It is also worth wondering why Barr seems to think it is more permissible for an inferior officer to ponder whether
the President might have corrupt intent once that officer has established beyond a reasonable doubt that the President
is involved in an underlying crime. After all, if we cannot assume that the President’s being the beneficiary of a
criminal conspiracy might motivate him to shut down an investigation into that conspiracy, why are we allowed to
assume that the President’s being a participant n that conspiracy might motivate him to shut down an investigation
into that conspiracy? To allow reviewability when the President is implicated in a crime is to make an ad hoc exception
to the non-reviewability principle. (One might even worry that such an exception objectionably “disempowers” the
Chief Executive, or that it would have disastrous consequences for the hierarchical structure of the entire executive
branch!)

22
other reports have suggested, that Manafort’s initial refusal to cooperate, his witness tampering,
and his subsequent lies to prosecutors, were all done because Trump had promised him a pardon
if he agreed to stymy the investigation in whatever way he could.
Here is the disturbing possibility: if Mueller’s inability to establish collusion was in fact a
result of Trump’s interference, Barr’s non-reviewability principle would nevertheless lead him to
exonerate the President on obstruction of justice even if Mueller explicitly outlined for Barr the
ways in which his investigation had been frustrated by Trump’s interference. After all, Barr’s
memo is clear: if Mueller can’t establish collusion, he may not investigate—much less charge—
Trump with obstruction of justice.
Now, it is worth stressing that there is no public evidence to support the theory that
Mueller’s inability to establish collusion was due to Trump’s interference. However, there is also
no public evidence that conflicts with this theory. Normally, under an Attorney General with less
radical views about executive power, or under an Attorney General more willing to disclose
investigative information, this would not be a live possibility. Under AG Barr, however, we have
no reason to rule this possibility out.
In closing, consider the following excerpt from Barr’s obstruction memo and ask yourself
how sure you can be that this “hypothetical” is not exactly what has gone on behind the scenes
with Trump, Mueller, and Barr:
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 “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. (p. 12)

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 Will 1989 Bill Barr Be Redacting the 2019 Mueller Report?

Barr has repeatedly promised Congress and the American public that he will disclose as much of
the content of Mueller’s final report as possible. However, he has always carefully qualified such
promises with phrases like: “to the extent allowed by the law” or “consistent with the law and DOJ
policies.” These qualifications would be reasonable and innocuous if Barr believed existing laws
and DOJ policies allowed him to be maximally transparency, i.e. that these laws and policies did
not prohibit him from disclosing a significant amount of the information contained in Mueller’s
report.
Unfortunately, as Barr’s two 1989 legal memos and his 2019 in-person and written
congressional testimony make clear, he believes that the laws on executive privilege and DOJ
policy actually render a posture of maximal transparency unconstitutional. In fact, he explicitly
states in his “Common Legislative Encroachments” memo that qualifiers like the ones he used in
his testimony and in his recent letters to Rep. Nadler are strategic rhetorical tricks, whose intended
purpose is to let executive branch heads pledge transparency while withholding significant
amounts of information from Congress. He writes:
In addition to overt efforts to obtain privileged information, Congress often includes in
bills language that purports to require that “all information” or “all reports” regarding a
specific subject be made available to a particular congressional committee or other entity
that is not part of the executive branch. Such efforts should be resisted, however, as an
unconstitutional encroachment on the President’s constitutional responsibility to protect
certain information. Therefore, it should always be recommended that such provisions
include the phrase “to the extent permitted by law.”…

I believe there are at least three types of information from Mueller’s report that Barr intends to
withhold from Congress and the public, most likely via redactions:
1. All communications between Trump and his “advisers.” Barr states in his 1989 legal
memo on executive privilege, heads of executive agencies—in this case, the Attorney
General—are constitutionally required to protect information pertaining to
communications between a President and his “advisers.”

a. Note: Barr does not say which individuals count as the President’s “advisers.” It is
therefore prudent to assume that Barr has the broadest possible understanding of
that term, i.e. any individual who has advised the President directly or indirectly on
any matter relating to the Presidency, the administration, or goings-on in the
executive branch, whether or not that individual has an official designation as a
Presidential aide, adviser, or official. Therefore, I think we should expect all
information pertaining to Trump’s communications with the following individuals
to be fully redacted from the version of Mueller’s report Barr is currently preparing:

i. James Comey, who was an official in Trump’s administration prior to his

firing.

24
 1. Rod Rosenstein, Deputy Attorney General who oversaw Mueller’s
investigation until November 2018.
2. Michael Flynn, Trump’s National Security Adviser.
3. Mike Pence, Trump’s VP
4. Paul Manafort, who unofficially advised Trump on his public about
Mueller’s investigation.
5. Michael Cohen, who was Trump’s personal lawyer and regular
confidant until Spring of 2018.
6. Donald Trump Jr., son and personal adviser.
7. Ivanka Trump, daughter and personal adviser.
8. Jared Kushner, son-in-law and adviser.
9. Hope Hicks, former Communications Director.
10. Jeff Sessions, Trump’s Attorney General until November 2018.
11. Matthew Whitaker, Trump’s Acting Attorney General from
November 2018 to February 2018.
12. Rudy Giuliani, Trump’s personal lawyer.
13. Any Russian officials, intelligence officers, oligarchs, or Kremlin
agents from whom Trump has sought advice on any official matters
of state or any matters concerning the Presidency. This may include
Vladimir Putin, with whom Trump has regularly met and whose
advice Trump has regularly sought.

2. All information about any individuals Mueller did not charge, including Donald
Trump himself. In his written answers to follow-up questions from Senators, Barr
explicitly says he will not disclose information he believes DOJ policy prohibits him from
disclosing. He then cites the DOJ policy and a guidebook for prosecutors both of which
prohibit disclosing any information that would infringe upon the “privacy” and
“reputational” concerns of any uncharged third-parties (note that this this is the same
language Barr used in his third letter to Nadler last week). Barr will therefore redact all
information pertaining to the following people:

1. President Donald J. Trump, uncharged.

2. Mike Pence, uncharged.
3. Donald Trump Jr., uncharged.
4. Ivanka Trump, uncharged.
5. Jared Kushner, uncharged.
6. Hope Hicks, uncharged.
7. Jeff Sessions, uncharged.
8. Matthew Whitaker, uncharged.
9. Rudy Giuliani, uncharged.
10. Any uncharged Russian officers, nationals, or Kremlin agents.

25
 3. State secrets and information pertaining to foreign affairs, including information that
could be deemed a national security threat: Barr mentions these categories in his 1989
memo on executive privilege. It is therefore likely virtually all non-public information
about the Russian interference campaign will be redacted.

4. Internal executive branch deliberations. Barr is not clear whether “internal executive
branch deliberations” are meant to include only communications between the President and
his advisers. Assuming he means the latter category to be narrower than the former, we
should expect Barr to redact all information about internal DOJ and FBI communications,
including potential communications between Rod Rosenstein and/or Matthew Whitaker
and the Special Counsel even if such information might be relevant to Congress’s
obstruction of justice inquiry.

Taken together, these redactions will likely occlude virtually all non-public information uncovered
by the Special Counsel, especially information that might be directly relevant to the question of
whether Donald Trump obstructed justice via pressuring Comey to “let Flynn go”, firing Comey,
pressuring Sessions to un-recuse, firing Sessions, installing Whitaker, pressuring Whitaker to
replace a key SDNY prosecutor, any communications between Trump and witnesses like
Manafort, Gates, Cohen, or Flynn about exchanging presidential pardons for their silence or non-
cooperation with investigators, and any instructions, requests, or pressure Trump may have put on
those witnesses to perjure themselves before Congress or the FBI.
A court-enforced subpoena for this information is the only remedy. As Barr makes clear in
his 1989 memo on executive privilege, all of the above forms of pre-emptive executive privilege
claims can and should be made prior to an official claim of privilege made by the President himself.
It is only after the official claim by the President is made, a subpoena is issued, and a court rules
that the subpoena must be enforced, that Barr says executive branch heads should be willing to
disclose otherwise privileged info to Congress.
All of this explains the strange sentence on executive privilege in Barr’s letter to Nadler
late last week: he seemed to suggest that, because Trump had publicly deferred to him (Barr) on
the privilege question, that he would be making privilege claims on Trump’s behalf. I suspect that
Trump’s lawyers, having read Barr’s views on executive privilege and/or discussed those views
with him at some point, told Trump he ought to publicly defer to Barr and that Barr would take
that as a signal to exercise expansive executive privilege on the President’s behalf. This is a PR
win for Trump, because he can issue public calls for transparency, but expect that his Attorney
General will not understand those calls as an actual waiver of privilege.
Finally, it is worth noting that Barr will likely block Robert Mueller from testifying before
Congress about the contents of his report. So I’m afraid those who have suggested that Mueller
can disclose his findings in a public setting even if Barr withholds the report are mistaken. Consider
the following exchange which, although certainly not definitive, does suggest that Barr is
intentionally leaving room to deny Mueller the opportunity to personally disclose the findings of
his report:
Q: Will you commit that, if you are confirmed:

26
 a. You would be willing to appear before the Senate Judiciary Committee to testify and
answer questions specifically about the Special Counsel investigation after Special Counsel
Mueller submits his concluding report?
RESPONSE: Yes.
b. You would not object to Special Counsel Mueller appearing before the Senate Judiciary
Committee to testify and answer questions about the Special Counsel investigation after he
submits his concluding report?
RESPONSE: I would consult with Special Counsel Mueller and other Department
officials about the appropriate response to such a request in light of the Special Counsel’s
findings and determinations at that time.

It seems likely we will hear from Mueller only if Mueller is willing to disobey instructions from
the Attorney General. Thus, given Mueller’s reputation for deference to institutional norms, I am
not optimistic about the prospect of a Mueller public testimony. Perhaps Congress should consider
subpoenaing one or more of the prosecutors on Mueller’s team, individuals who would be more
willing to break a DOJ official’s instructions?

27