RUTHFULLY YOURS

Yet critics decry his nomination, or at least insist that he recuse himself from supervising special counsel Robert Mueller, because of an unsolicited memo he wrote last June to Deputy Attorney General Rod Rosenstein, who then had supervisory responsibility for the Mueller investigation, and Assistant Attorney General Steven Engel, current head of the Office of Legal Counsel. The memo criticizes one obstruction-of-justice theory that some have speculated Mr. Mueller is pursuing.

The criticisms of Mr. Barr and his memo are meritless. The 19-page document does not fault the Mueller investigation of a possible criminal connection between the Trump campaign and Russia, or even any of its secondary and tertiary prongs such as the prosecutions of Paul Manafort, Michael Cohen and George Papadopoulos. It argues forcefully that the president cannot be guilty of obstruction of justice based either on his May 2017 firing of James Comey as director of the Federal Bureau of Investigation or his purported earlier request that Mr. Comey go easy on former national security adviser Mike Flynn.

Mr. Barr’s memo acknowledges that he has no inside knowledge on the facts of the case, and that factors unknown to him may be in play, including the possibility that Mr. Mueller has an entirely different—and legitimate—obstruction theory in mind.

Mr. Barr’s closely reasoned argument addresses the federal statute that criminalizes witness tampering and destruction of evidence. He focuses on the part of that law that imposes liability on one who “(1) corruptly . . . alters, destroys, mutilates, or conceals” a record or other object, or attempts to do so, “with the intent to “impair . . . the object’s . . . use in an official proceeding, or (2) otherwise obstructs, influences, or impedes any official proceeding.” Mr. Barr focuses in particular on the “otherwise” clause.

The memo makes four points. First, rules of statutory construction, court decisions and legislative history all show that the word “corruptly” addresses the means a defendant uses, not his motive, and that “otherwise” was meant to include only means similar in type to the ones enumerated earlier—“alter, destroy, mutilate, or conceal”—and not to any act at all, or there would have been no need for that enumeration.

Second, the Justice Department has taken the position that conflict-of-interest laws do not apply to the president—that he may make decisions even about matters that directly concern him. It follows that the president cannot be prosecuted for facially lawful exercises of his constitutional authority—including the authority to remove officials or exercise prosecutorial discretion.

Third, criminally prosecuting an exercise of constitutional authority based on its motive would impermissibly burden that authority.

Fourth, in any event facially lawful conduct in this constitutional setting cannot be prosecuted as “corrupt” unless there is an underlying something to be corrupt about—i.e., a criminal relationship between Mr. Trump and the Russians—and that has not been shown.

Agree or not with Mr. Barr’s detailed arguments—and I agree with virtually all of them—there is no way that this memo reflects adversely on his qualifications. To the contrary, it is the sort of methodical presentation that exemplifies the best of what lawyers do.

The critics cannot be giving us their real reasons for faulting Mr. Barr. If they were, they would have demanded that Mr. Rosenstein—who wrote the memo Mr. Trump used to justify Mr. Comey’s dismissal—recuse himself because of his personal involvement. They would have opposed my successor as attorney general, Eric Holder, after his 2009 confirmation hearing, when—not knowing any of the underlying classified facts—he confidently pronounced that interrogation techniques the Central Intelligence Agency had used constituted torture. Or at least they would have insisted that he recuse himself from any further consideration of prosecuting the CIA interrogators. Instead, on taking office, Mr. Holder reopened those investigations, only to close them quietly many months later.

In any event, the memo is no basis to demand that Mr. Barr, when confirmed, recuse himself from his duty to supervise Mr. Mueller’s investigation. Again, its arguments are based solely on publicly available information, and it addresses only one possible legal theory. If on taking office Mr. Barr becomes aware of publicly undisclosed facts or of different bases for Mr. Mueller’s inquiry, he will consider them. When and if Mr. Barr must make any decision that relates to the subject of the memo, he will have the benefit of alternative viewpoints.

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.

Mr. Mukasey served as U.S. attorney general (2007-09) and a U.S. district judge (1988-2006).