In memo, Trump's AG pick criticized aspect of Mueller probe

WASHINGTON (AP) — President Donald Trump's pick for attorney general, William Barr, sent an unsolicited memo to the Justice Department this year criticizing as "fatally misconceived" the special counsel's investigation into whether the president took steps to obstruct a probe into ties between his campaign and Russia.

The 20-page memo, sent in June while Barr was in private practice and months before he was selected by Trump for the Justice Department job, could factor into his future confirmation hearings before the Senate Judiciary Committee and may prompt questions about his ability to oversee the special counsel's investigation in an open-minded and impartial manner.

The document argues that there could be disastrous consequences for the Justice Department and the presidency if special counsel Robert Mueller were to conclude that acts a president is legally permitted to take — such as firing an FBI director — could constitute obstruction just because someone concludes that there was corrupt intent.

"Mueller should not be permitted to demand that the President submit to interrogation about alleged obstruction," Barr wrote. "Apart from whether Mueller (has) a strong enough factual basis for doing so, Mueller's obstruction theory is fatally misconceived."

Barr acknowledged that a president can commit obstruction of justice by destroying evidence or tampering with witnesses. But, he said, he is unaware of any accusation like that in the Mueller investigation, and he said it would "do lasting damage to the Presidency and to the administration of law within the Executive branch" if an act like the firing of ex-FBI chief James Comey could amount to obstruction.

The memo was sent to Deputy Attorney General Rod Rosenstein, who appointed Mueller, and to Steven Engel, the head of the Justice Department's Office of Legal Counsel, which provides legal advice to executive branch agencies. It was turned over to the Senate Judiciary Committee, which released it along with questionnaire responses that Barr submitted to the panel.

The memo adds to a record of other statements given by Barr over the last year or so about the Mueller investigation. Those include comments to a newspaper expressing concern about the fact that multiple members of the Mueller team had made political contributions to Democratic political candidates. Acting Attorney General Matthew Whitaker has criticized the investigation in even more pointed ways.

A spokesman for Mueller declined to comment on the memo, which was first reported by The Wall Street Journal.

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WASHINGTON, DC - OCTOBER 28: Former FBI director Robert Mueller attends the ceremonial swearing-in of FBI Director James Comey at the FBI Headquarters October 28, 2013 in Washington, DC. Comey was officially sworn in as director of FBI on September 4 to succeed Mueller who had served as director for 12 years. (Photo by Alex Wong/Getty Images)
US President Barack Obama applauds outgoing Federal Bureau of Investigations (FBI) director Robert Mueller (L) in the Rose Garden at the White House in Washington on June 21, 2013 as he nominates Jim Comey to be the next FBI director. Comey, a deputy attorney general under George W. Bush, would replace Mueller, who is stepping down from the agency he has led since the week before the September 11, 2001 attacks. AFP PHOTO/Nicholas KAMM (Photo credit should read NICHOLAS KAMM/AFP/Getty Images)
Outgoing FBI Director Robert Mueller applauds key staff members during a farewell ceremony held for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW HEADSHOT)
391489 03: U.S. President George W. Bush speaks during a conference as he stands with Justice Department veteran Robert Mueller, left, who he has nominated to head the FBI, and Attorney General John Ashcroft July 5, 2001 the Rose Garden at the White House in Washington, DC. (Photo by Mark Wilson/Getty Images)
Outgoing FBI Director Robert Mueller stands for the national anthem during a farewell ceremony for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
Outgoing FBI Director Robert Mueller (L) reacts to a standing ovation from the audience, Deputy U.S. Attorney General James Cole (C) and U.S. Attorney General Eric Holder (R) during Mueller's farewell ceremony at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
Outgoing FBI Director Robert Mueller gestures during his remarks at a farewell ceremony held for him at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
FILE PHOTO -- U.S. Attorney General John Ashcroft (R) and FBI Director Robert Mueller speak about possible terrorist threats against the United States, in Washington, May 26, 2004. REUTERS/Kevin Lamarque/File Photo
Outgoing FBI Director Robert Mueller reacts to applause from the audience during his farewell ceremony at the Justice Department in Washington, August 1, 2013. On Monday the U.S. Senate confirmed former Deputy Attorney General James Comey to replace Mueller, who has led the bureau since shortly before the September 11, 2001, attacks on the United States. REUTERS/Jonathan Ernst (UNITED STATES - Tags: POLITICS CRIME LAW)
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WASHINGTON, : FBI Director Robert Mueller answers questions before Congress 17 October 2002 on Capitol Hill in Washington. Mueller was testifying before the House and Senate Select Intelligence committees' final open hearing investigating events leading up to the September 11, 2001. AFP Photos/Stephen JAFFE (Photo credit should read STEPHEN JAFFE/AFP/Getty Images)
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399994 02: Federal Bureau of Investigation (FBI) Director Robert Mueller visits the American military compound at Kandahar Airport January 23, 2002 in Kandahar, Afghanistan. Mueller had lunch with FBI officials and Haji Gulali, commander of the Kandahar region. (Photo by Mario Tama/Getty Images)
Federal Bureau of Investigation (FBI) Director Robert Mueller (L) stand during the National Anthem alongside Attorney General Eric Holder (R) and Deputy Attorney General James Cole (C) during a farewell ceremony in Mueller's honor at the Department of Justice on August 1, 2013. Mueller is retiring from the FBI after 12-years as Director. AFP PHOTO / Saul LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
399994 01: Federal Bureau of Investigation (FBI) Director Robert Mueller greets American forces on the American military compound at Kandahar Airport January 23, 2002 in Kandahar, Afghanistan. Mueller had lunch with FBI officials and Haji Gulali, commander of the Kandahar region. (Photo by Mario Tama/Getty Images)
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Justice Department spokeswoman Kerri Kupec said Barr's views were based solely on publicly available information and were expressed "on his own initiative." In the memo, Barr says he is writing "as a former official deeply concerned with the institutions of the Presidency and the Department of Justice." He acknowledged that he was "in the dark about many facts."

Kupec said: "Following the announcement of Mr. Barr's nomination, senior Department ethics officials were consulted and advised that, under the applicable rules of professional conduct, Mr. Barr's memo would present no conflict as to his duties as Attorney General. Mr. Barr has stated that, if confirmed, he will make any decisions based on the actual facts and circumstances of any particular matter."

Barr served as attorney general from 1991 until 1993 under President George H.W. Bush.

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