WASHINGTON — President Donald Trump's pick for attorney general, William Barr, sent an unsolicited memo to the Justice Department this year criticizing a central prong of the special counsel's Russia investigation, attacking as "fatally misconceived" the idea the president could have obstructed justice.

The 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 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 — whether firing an FBI director or granting a pardon — could constitute obstruction because of a subjective determination that they were done with 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.

Some Senate Democrats, including Minority Leader Chuck Schumer, expressed alarm over the memo. The outgoing Republican chairman of the Senate Judiciary Committee, Sen. Chuck Grassley, said he was confident Barr would address questions over it, noting: "It may be a very serious issue, or it may be a less serious issue. Or it may not be an issue at all."

Sen. Lindsey Graham, the incoming committee chairman, said he wasn't bothered by the document though he noted he didn't agree with everything in it.

"People can have opinions. They can express them," Graham said. "They can be advocates. It doesn't mean they're disqualified."

 

No recusal

In a separate development, a senior official said Thursday that Acting Attorney General Matthew Whitaker chose not to recuse himself from the Russia investigation even though a top Justice Department ethics official advised him to step aside out of an "abundance of caution."

Whitaker's past criticism of the Russia investigation has raised questions about whether he can oversee it fairly. The ethics official said this week that a recusal was "a close call," but suggested that Whitaker remove himself, even though he was not required to do so.

Whitaker decided not to take the advice.

The Justice Department official briefed reporters on condition that he not be identified.