https://www.nationalreview.com/2018/12/william-barr-attorney-general-nomination/
A response to Daniel Hemel and Eric Posner
University of Chicago law professors Daniel Hemel and Eric Posner have penned an op-ed for the New York Times in which they argue that William P. Barr is disqualified to serve as President Trump’s attorney general. Their rationale is that the advisory memorandum Barr wrote to Justice Department officials this past June, arguing against the validity of Special Counsel Robert Mueller’s obstruction theory, raises questions about his objectivity and fitness.
Coming from such estimable scholars, the Hemel-Posner column is surprisingly vapid. In fact, it is so unconvincing, I can only conclude that it is the start of a two-part strategy: Set the table by staking out an aggressive but untenable position that Barr — an eminently qualified former attorney general — is not suitable to be AG; then, Democrats can appear oh so reasonable in ultimately arguing that Barr must at least recuse himself from oversight of the Mueller investigation. The latter would be a meritless contention, though one we are certain to hear.
Hemel and Posner concede that Barr explicitly disclaimed knowledge about many of the facts of Mueller’s investigation. Moreover, far from attacking the legitimacy of Mueller’s overall investigation, or claiming that a prosecutor may not validly investigate the president for obstruction, Barr asserts that a president may indeed be cited for obstruction by “sabotaging a proceeding’s truth-seeking function.”
Barr’s quarrel, the professors correctly state, is with what press reports indicate is an expansive construction of Section 1512(c) of the federal penal code. As I explained in a National Review column earlier this week, Barr contends that application of the obstruction statute is limited to innately wrongful acts of evidence and witness tampering; it cannot be stretched to cover prerogatives of the presidency (e.g., issuing pardons, dismissing subordinate officials, exercising prosecutorial discretion by weighing in on the merits of an investigation) that a prosecutor believes may have been improperly motivated. Otherwise, not only would the chief executive potentially be divested of his constitutional authority; the administration of justice would be damaged because this theory would apply to all executive officials — including, for example, prosecutors making strategic decisions in litigation, or making personnel and management decisions.