When Attorney General Bill Barr gave a press conference in advance of his release of the Mueller report on April 18, the most shocking moment came when he claimed that the president’s attempts to curtail the Mueller investigation were justified because the investigation had annoyed him. “The president was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks,” Barr said.
At the time, it was stunning how deliberately Barr seemed to be very specifically appropriating President Donald Trump’s extralegal talking point about blaming the press and the president’s enemies for the president’s conduct. As my colleague Mark Joseph Stern noted that day, this wasn’t a legal defense. It was nothing short of the claim that if the president feels harassed, it isn’t illegal to stop an investigation. As Stern put it:
Barr’s message here is simple: Trump is the real victim. The victim of the media and leaks. The victim of excess scrutiny and oversight. The victim of what Barr appears to believe was an overly intrusive investigation conducted by overzealous “federal agents and prosecutors.” All of Trump’s lying, his interference, his efforts to publicly discredit the probe, his public assault on Mueller—all of it is excusable, Barr implied, because the probe found “no collusion.” Indeed, Barr writes off Trump’s campaign against the investigation as a perfectly understandable effort to maintain his innocence. His acts were not obstructionary; they were noble.
That defense was shocking not simply because it had nothing to do with the legal questions of conspiracy and obstruction before Mueller and Barr, but also because it seemed to have explicitly adopted and accepted the Trumpist worldview that holds any attempt at oversight or investigation deemed by the president to be unjustified harassment is illegitimate. This is, by the way, pretty much the same legal theory being invoked this week to reject the authority of congressional oversight and subpoenas. As Steve Vladek observed this past weekend, the defense that absolutely everything is a witch hunt and thus not legitimate is not a specific constitutional claim. It is, however, a recipe for a constitutional crisis.
This now appears to be a central tenet of the legal strategy Trump and his surrogates are pushing forward, though. At his testimony before the Senate Judiciary Committee on Wednesday morning, Barr seems to have again blamed the existence of a witch hunt against Trump for virtually everything Trump later did to put a stop to it. The press was again cited as the reason he rushed out his initial, erroneous summary of the report, as was the public’s “high state of agitation.” Barr even claimed that it was the press coverage of the initial Mueller report summary that troubled Mueller, rather than Barr’s own letter downplaying the report’s findings. Barr testified that Mueller told him “the press reporting had been inaccurate.” And yet, in Mueller’s March 27 letter objecting to Barr’s characterization of the report (which just became public on Tuesday) there is NOTHING to suggest that Mueller thought it was the press that got it wrong.
Then, in response to questions from Sen. Dianne Feinstein about why it was that Trump ordered former White House counsel Don McGahn to end the Mueller probe, Barr seems to have again taken the legal position that the president’s anger and frustration over press reports that he had instructed McGahn to fire Mueller somehow made this directive permissible. Barr seemed to be saying that Trump could not have committed obstruction by asking McGahn to fire Mueller, so long as he was attempting to forestall further negative press. As Barr put it:
If the president is being falsely accused, which the evidence now suggests that the accusations against him were false, and he knew they were false, and he felt that this investigation was unfair, propelled by his political opponents and was hampering his ability to govern, that is not a corrupt motive for replacing an independent counsel.
This is an astonishing claim—that if the president feels that the investigation is unnecessary and is resulting in him being harassed or misrepresented in the media, then the president is justified in taking any action he sees fit to stop it without running afoul of the obstruction laws. It’s also a claim that was refuted in the Mueller report itself. It’s Nixonian in scope to imply that anything Trump wants to do in order to push back against the media and protect his reputation is legal and justified.
Barr has not been having a good morning. Mueller’s now-public March 27 letter has revealed that the otherwise sphinx-like special counsel was frustrated by the way Barr initially characterized the report, putting the attorney general in a defensive position from which he has had trouble recovering. In addition to adopting and expanding the president’s war on the press and witch hunt defenses, Barr has now placed the Justice Department itself into the crosshair—implying that the DOJ itself and Mueller are bound to a view of the law that somehow takes into account the president’s antipathy and anger toward his perceived enemies as inherently exculpatory.
We know that Donald Trump hates the media, and he hates being criticized, and he believes that his own suffering justifies all of his actions. We’ve known that for a long time. But for the attorney general to expressly adopt the view that the president can’t obstruct justice if he’s doing it because the press is annoying him is an appalling next step in the descent into establishing an imperial presidency, unchecked by either Congress or a free media. Every president believes the media gives him a raw deal. Barr just put the Justice Department’s imprimatur on the claim that such feelings put the president above the law.