AG nominee sent memo on Mueller probe to Trump's lawyers

WASHINGTON (AP) — President Donald Trump's pick for attorney general sent White House lawyers a memo arguing that the president could not have obstructed justice by firing ex-FBI Director James Comey, describing a critical prong of the special counsel's Russia investigation as "fatally misconceived," a person familiar with the matter told The Associated Press on Monday.

The development, revealed the night before William Barr's confirmation hearing, raises questions about Barr's communications with Trump's attorneys ahead of his nomination and is likely to prompt questions about his ability to impartially oversee special counsel Robert Mueller's investigation.

Democrats were already seeking to question Barr about the memo, which he sent, unsolicited, to the Justice Department in June.

Barr sent a letter Monday to Sen. Lindsey Graham, the Republican chairman of the Senate Judiciary Committee, detailing that he sent the memo to White House lawyer Emmet Flood, Solicitor General Noel Francisco and Pat Cipollone, who is now White House counsel, according to the person familiar with the matter. Barr also discussed the contents of the memo with Trump's attorneys, Jay Sekulow and Jane and Martin Raskin, the person said.

The person wasn't authorized to discuss the matter publicly and spoke to The Associated Press on condition of anonymity.

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William Barr through the years
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William Barr through the years
FILE - In this Nov. 12, 1991 file photo, then Attorney General nominee William Barr is shown on Capitol Hill in Washington. Barr once advised the U.S. government that it could attack Iraq without Congressional approval, arrest a deposed foreign dictator and capture suspects abroad without that country’s permission. Those decisions reflect a broad view of presidential power that Barr, President Donald Trump's pick to reclaim his old attorney general job, demonstrated at the Justice Department and in the years since. (AP Photo/John Duricka)
U.S. President George H. Bush signs into law new civil rights guarantees for women and minorities at a Rose Garden ceremony, Thursday, Nov. 21, 1991 in Washington, as Vice President Dan Quayle, left, and Acting Attorney General William Barr look on. The bill signing capped a two-year struggle with congress over whether the legislation encouraged job quotas. (AP Photo/Marcy Nighswander)
U.S. President George H. Bush, right, and William Barr wave after Barr was sworn in as the new Attorney General of the United States, Tuesday, Nov. 26, 1991 at a Justice Department ceremony in Washington. (AP Photo/Scott Applewhite)
U.S. President George H. Bush gestures while talking to Attorney General William Barr in the Oval Office of the White House, Monday, May 4, 1992 in Washington. The President met with top domestic Cabinet officers to tackle long-range problems pushed to the forefront by last week's deadly riots in Los Angeles. (AP Photo/Marcy Nighswander)
Board member of MCI Telecommunications, Nicholas Katzenbach, second left, speaks at hearing before the Senate Committee on the Judiciary on "The WorldCom Case: Looking at Bankruptcy and Competition Issues" on Capitol Hill in Washington Tuesday, July 22, 2003. Witnesses are, from left, Executive Vice President and General Counsel of Verizon Communications William Barr, Katzenbach, Weil Gotshal & Manges LLP's Marcia Goldstein, Communications Workers of America President Morton Bahr, National Bankruptcy Conference Vice-Chair Douglas Baird, Cerberus Capital Management Chief Operation Officer Mark Neporent. (AP Photo/Akira Ono)
Former Georgia Congressman Bob Barr, left, listens as William Redpath, Libertarian Party national chairman, answers a question at a news conference in Oklahoma City, Tuesday, Oct. 23, 2007. (AP Photo)
President Donald Trump's attorney general nominee, William Barr, meets with Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, on Capitol Hill in Washington, Wednesday, Jan. 9, 2019. Barr, who served in the position in the early 1990s, has a confirmation hearing before the Senate Judiciary Committee next week and could be in place at the Justice Department as soon as February when Deputy Attorney General Rod Rosenstein leaves after Barr is confirmed. (AP Photo/J. Scott Applewhite)
President Donald Trump's attorney general nominee, William Barr, left, meets with Senate Judiciary Committee member and Trump confidant Sen. Lindsey Graham, R-S.C., on Capitol Hill in Washington, Wednesday, Jan. 9, 2019. Barr, who served in the position in the early 1990s, has a confirmation hearing before the Senate Judiciary Committee next week and could be in place at the Justice Department as soon as February when Deputy Attorney General Rod Rosenstein leaves after Barr is confirmed. (AP Photo/J. Scott Applewhite)
President Donald Trump's attorney general nominee, William Barr, arrives to meet with Senate Judiciary Committee member and Trump confidant Sen. Lindsey Graham, R-S.C., on Capitol Hill in Washington, Wednesday, Jan. 9, 2019. Barr, who served in the position in the early 1990s, has a confirmation hearing before the Senate Judiciary Committee next week and could be in place at the Justice Department as soon as February when Deputy Attorney General Rod Rosenstein leaves after Barr is confirmed. (AP Photo/J. Scott Applewhite)
President Donald Trump's attorney general nominee, William Barr, right, meets with Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, on Capitol Hill in Washington, Wednesday, Jan. 9, 2019. Barr, who served in the position in the early 1990s, has a confirmation hearing before the Senate Judiciary Committee next week and could be in place at the Justice Department as soon as February when Deputy Attorney General Rod Rosenstein leaves after Barr is confirmed. (AP Photo/J. Scott Applewhite)
Attorney General nominee William Barr , left, turns to answer a reporter's question as he arrives to meet with Sen. Ben Sasse, R-Neb., on Capitol Hill, Wednesday, Jan. 9, 2019 in Washington. (AP Photo/Alex Brandon)
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Barr sent the memo while he was in private practice and months before he was selected by Trump for the top Justice Department job. On Tuesday, Barr will seek to assure lawmakers that the memo was narrowly focused on a single theory of obstruction that media reports suggested Mueller might be considering, according to a copy of his prepared remarks provided by the Justice Department.

Barr is expected to tell senators he wrote it himself as a former attorney general "who has often weighed in on legal issues of public importance."

As part of his testimony, Barr is also expected to tell the senators that Trump didn't seek any assurances or promises before nominating him.

In the memo, Barr argues that it could be disastrous for the presidency and the Justice Department if Mueller concludes that actions the president is legally permitted to take — including firing an FBI director or granting a pardon — could constitute obstruction because of a subjective determination that they were done with corrupt intent.

Barr acknowledged a president can commit obstruction of justice by destroying evidence or tampering with witnesses. But, he said, he wasn't aware of any accusation like that in Mueller's investigation.

Barr's role overseeing the Russia probe may be especially important since Deputy Attorney General Rod Rosenstein, who appointed Mueller and has overseen his day-to-day work, expects to leave the Justice Department soon after Barr is confirmed.

CNN first reported that Barr sent the memo to White House officials.

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Associated Press writer Eric Tucker contributed to this report.

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