The Barr memo is a commendable piece of lawyering

Instead, Barr’s argument is narrow. Mueller appears to be relying on Section 1512 of the federal penal code, an obstruction statute that contains a “catch-all” provision (subsection (c)(2)). This provision targets anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” (Emphasis in Barr’s memo, not in the statute.) Barr’s point is that, to avoid constitutional problems (e.g., vagueness, infringement on Article II authorities), “otherwise” must be read to refer to the types of innately obstructive acts that precede it (in subsection (c)(1)) — “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”

That is, Congress’s objective in enacting this obstruction statute was to protect official proceedings from actions that could corruptly compromise the honesty of decision-makers, or render evidence either unavailable or tainted. To “otherwise obstruct, influence, or impede” must involve similar, inherently corrupt action. The statute must not be extended to just any conduct that potentially affects a proceeding, because that would implicate perfectly lawful conduct that executive officials (including the president) routinely engage in — and must be able to engage in if justice is to be administered efficiently.

This is not just sensible, it is elucidated by the legislative history. As Barr recounts, the provision in question was enacted as part of the 2002 Sarbanes-Oxley Act in order to close a loophole in obstruction law exposed by the Enron scandal. The existing provision appeared to cover document destruction only if person A induced person B to do it, not if A carried it out directly.