Checkmate: How President Trump's Legal Team Outfoxed Mueller

Checkmate: How President Trump's Legal Team Outfoxed Mueller

At the end of Volume II of the Mueller Report, however, there were 20 pages of genuinely new material. There, the former FBI director turned Special Counsel Robert Mueller defended his “Application of Obstruction-Of-Justice Statutes To The President.”   

These overlooked 20 pages were dedicated to defending Mueller’s interpretation of a single subsection of a single obstruction-of-justice statute: 18 U.S.C. § 1512(c)(2). That’s quite strange, but you know what’s stranger still? 

In June 2018, Bill Barr, then in private practice at Kirkland & Ellis, wrote a detailed legal memorandum to Deputy Attorney General Rod Rosenstein. This memo came to light in December, when Barr was nominated for Attorney General. The subject was Mueller’s interpretation of the aforementioned 18 U.S.C. § 1512(c)(2). 

When Barr’s memo first appeared, prominent liberal legal commentators were perplexed. Georgetown Law professor Marty Lederman wrote at Just Security: 

“[T]he first huge and striking problem with Barr’s memo is that he unjustifiably makes countless assumptions about what Mueller is doing…From all that appears, Barr was simply conjuring from whole cloth a preposterously long set of assumptions about how Special Counsel Mueller was adopting extreme and unprecedented-within-DOJ views about every pertinent question and investigatory decision.” 

... 

Reading Barr’s June 2018 memo alongside the last twenty pages of the Mueller Report is a curious experience. Together, they read like dueling legal briefs on the meaning of 18 U.S.C. § 1512(c)(2); the type of material one would expect to see from adversarial appellate litigators. So-why did Robert Mueller dedicate 20 pages of his report to a seemingly obscure question of statutory interpretation? 

Why did Bill Barr write a detailed legal memorandum to Rod Rosenstein about that very same statute? And how, exactly, did Bill Barr know that that § 1512(c)(2) was central to Mueller’s obstruction theory – in June 2018, when he was still in private practice at Kirkland?

This is an important article. I suggest you read it.