Happy new year! I hope you spent the holidays with family and friends, and took a pause to reflect on the historic events that unfolded in 2018.
One evening during the break, as I was reflecting and, admittedly, brooding over the past year, I posed an open-ended question on Twitter: What is not broken?
The question wasn’t meant as a lament, as some took it. It was a genuine public appeal for a silver lining. Our institutions, it seems, are under constant attack; our politics and discourse, afflicted with deception and vitriol. Just that day’s headlines – a second child dead in border patrol custody; a partial shutdown of our government; resignation of Jim Mattis and Brett McGurk – capped off a brutal year. With so much to worry about, with so much uncertainty, I wanted to focus my attention on things that were going right in America, and so I asked, what is not broken?
The response to the tweet was overwhelming – more than 1,800 people responded, with comments incisive, inspiring, and amusing. I was moved by the answers and I’d like to share some of them with you. My hope is that we start the year with a focus on our enduring strengths, those qualifies that make America anti-fragile when our values are tested.
What isn’t broken? Our spirit. Our resolve. Our ability to decipher truth. Our sense of humor. And most importantly, our hope.
As Martin Luther King Jr. once said, “We must accept finite disappointment, but never lose infinite hope.” We should keep this principle at the top of mind, especially in turbulent, testing times.
READ ABOUT THE BARR MEMO
We will soon be contending with confirmation hearings for Bill Barr, President Trump’s nominee for Attorney General. Much of the questioning Barr is expected to face will revolve around issues arising from an unsolicited memo he sent to the DOJ last June. In the memo, which surfaced late last month, Barr argues that Mueller should not be permitted to question Trump about obstruction of justice, raising a range of concerns about his motivation for writing it and his fitness to lead the Justice Department.
In the 20-page memo, addressed to Rod Rosenstein and Steven Engel, Barr writes:
It appears Mueller’s team is investigating a possible case of “obstruction” by the President predicated substantially on his expression of hope that Comey could eventually “let… go” of its investigation of Flynn and his action in firing Comey…Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction. Apart from whether Mueller [has] strong enough factual basis for doing so, Mueller’s obstruction theory is fatally misconceived. As I understand it, his theory is premised on a novel and legally insupportable reading of the law.
Barr admits he is “in the dark about many facts” relevant to Mueller’s inquiry. Nevertheless, he argues that Trump could not have obstructed justice under 18 U.S.C. 1512 – the statute Mueller is purportedly relying on – by merely exercising his Article II powers, such as the power to hire and fire an FBI director, unless the president also engaged in some form of “evidence impairment,” which includes destroying or altering evidence, witness tampering, or other acts deliberately impairing the integrity or availability of evidence.
Barr also argues that Mueller must first have sufficient evidence of collusion before he could question the President about obstruction, writing:
[T]he President’s motive in removing Comey and commenting on Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion.
There has been a lot of analysis and commentary on the Barr memo. These are a few select reads:
Former Acting Solicitor General Neal Katyal tweeted:
This is an interesting memo. It clearly shows Barr to be qualified…for being on Trump’s legal team. But it is an advocacy document & raises the question of whether Barr was nominated not because he was the best candidate, but the best candidate for Trump.
Ben Wittes and Mikhaila Fogel, in a post for the Lawfare blog, questioned the memo’s underpinnings given that the fact pattern Mueller is relying on in any obstruction case is unknown:
[O]ne thing attorneys general of the United States should certainly not do is make up facts. And ironically for a memo laying out the argument that Bob Mueller has made up a crime to investigate, the document is based entirely on made-up facts… Indeed, it is not an exaggeration to say that Barr’s entire memo is predicated on two broad assumptions: first, that he knows Mueller’s legal theory, and second, that he understands the fact pattern Mueller is investigating…Neither assumption is, in our judgment, warranted.
Joyce Vance, former U.S. Attorney for the Northern District of Alabama and a guest of Stay Tuned, argued against Barr’s confirmation in an essay for Slate:
No matter what Barr’s intentions, the appearance of impropriety—of ingratiating himself with a president whose desire to install a wingman as attorney general—means that the public perception will always equate Barr, if confirmed, with Trump’s desire to hold himself above the law.
Daniel Hemel and Eric Posner, University of Chicago Law School professors, addressed the substance of Barr’s arguments in an op-ed for the New York Times, including the argument that acts that are on their face lawful, like firing an FBI director, cannot amount to obstruction:
[T]he obstruction statutes do apply to actions that would be “facially lawful” under other circumstances. For example, there is no law against tearing up pieces of paper; there is a law against tearing up documents so that they cannot be subpoenaed by federal prosecutors. Firing the F.B.I. director is not a crime; firing the F.B.I. director in order to block an investigation into the president’s own actions very well might be.
Andrew McCarthy, former Chief Assistant U.S. Attorney in the Southern District of New York, in an article for the National Review, argued in support of Barr’s interpretation of the obstruction statute, Section 1512(c)(2), which targets anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,” writing:
The statute must not be extended to just any conduct that potentially affects a proceeding, because that would implicate perfectly lawful conduct that executive officials (including the president) routinely engage in — and must be able to engage in if justice is to be administered efficiently. . .[T]his interpretation does not place the president above the law; it applies law as it exists to the president.
SOMEONE TO FOLLOW
Preet and the team at CAFE are pleased to join the growing list of public figures who have urged people to follow the @AuschwitzMuseum, the official Twitter account for the memorial that preserves the historical site of the former German Nazi concentration and extermination camp.
The account’s stated mission is to, “commemorate and educate about the tragic history of Auschwitz as we believe it should inspire people today to build a better & a more responsible world.”
PRE-ORDER PREET’S BOOK “DOING JUSTICE”
You can now order Preet’s book, “Doing Justice: A Prosecutor’s Thoughts on Crime, Punishment, and the Rule of Law.” It ships March 19. It is also available as an audiobook.
The CAFE Insider podcast will be back next Monday, January 7.
That’s it for this week. We hope you’re enjoying CAFE Insider. Please send us your suggestions and questions at Insider@cafe.com.
Happy New Year!
– Preet and the Cafe Team