Daniel J. Hemel and Eric A. Posner conclude Yes, [Trump Attorney General Nominee] Bill Barr’s Memo Really is Wrong About Obstruction of Justice. They respond with 6 arguments concerning federal bribery law, “facially lawful” acts, obstruction and collusion, the Starr investigation, the theory of a unitary executive, and the context of appointee Barr’s memo. I’ve excerpted parts of Hemel and Posner’s first argument, but each argument is equally sound.
In a New York Times op-ed last Friday, we wrote that William Barr, who served as attorney general under President George H.W. Bush and has been nominated by President Trump for that post again, had seriously damaged his credibility by sending an unsolicited and poorly reasoned memo to the Justice Department and the White House arguing that Special Counsel Robert Mueller “should not be permitted to demand that the President submit to interrogation about alleged obstruction.” At the National Review, Andrew McCarthy says that our op-ed is “surprisingly vapid” and that the Barr memorandum’s legal advice is “sound.” We explain below why McCarthy’s arguments are mistaken.
The Bribery Debate
Barr argues that “statutes that do not expressly apply to the President must be construed as not applying to the President if such application would involve a possible conflict with the President’s constitutional prerogatives.” Barr’s claim, we said, was too broad because it would shield the president from “a host of uncontroversial laws” such as the federal bribery statute. After all, the president has the constitutional prerogative to nominate (and with the advice and consent of the Senate, appoint) members of his own Cabinet, but no one thinks that the president can therefore sell off Cabinet posts to the highest bidders.
McCarthy responds by disputing our premise that the president is subject to federal bribery law. He writes that the bribery statute, 18 U.S.C. §201, “clearly does not apply to the president” because the statute applies only to “public officials” and the president and the vice president are not included in the statute’s list of public officials. Never mind that the definition of “public official” includes any “person acting for or on behalf of the United States.” Because the statute does not mention the president, McCarthy asserts, it does not apply to him. McCarthy, moreover, attributes all of this to “the Justice Department’s well-established position” on the subject.
In fact, the Justice Department’s position is the opposite. According to a 1995 Office of Legal Counsel opinion, “the Department of Justice has construed the federal bribery statute as applying to the President even though it does not expressly name the President.” Now, McCarthy might disagree with the Justice Department’s position, but that is indeed the Justice Department’s position.
Why does the Office Legal Counsel, an executive-branch office that takes a famously latitudinarian approach to presidential power, nonetheless reject the view that McCarthy takes? One clue is that McCarthy’s perspective, if taken seriously, would mean not only that the president could take a bribe without fear of criminal liability but also that anyone else could bribe the president without fear of criminal liability. That’s because the bribery statute applies to anyone who “corruptly gives, offers or promises anything of value to any public official … to influence any official act,” and to anyone who “being a public official … , corruptly demands, seeks, receives, accepts, or agrees to accept anything of value … in return for … being influenced in the performance of any official act.” So if—as McCarthy claims—the president and vice president are not “public officials,” bribing them would not be a crime. Why Congress would want to criminalize bribery of everyone else in the federal government except for the No. 1 and No. 2 officials is a mystery that McCarthy does not seek to solve.