FILE - In this Jan. 9, 2019, 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. As he did almost 30 years ago, Barr is appearing before the Senate Judiciary Committee to make the case he’s qualified to serve as attorney general. (AP Photo/J. Scott Applewhite)

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

January 14, 2019 - 4:39 pm

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.

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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