Our U.S. Attorney General has become the Attorney in Particular. The particular? Bill Barr is now clearly loyal to one person, and not to the people of the United States, or even the U.S. Constitution.
David Cole, in “An Indictment in All But Name,” has provided a concise summary of the Muller report’s conclusion on “exoneration.” This quote captures the substance of Cole’s piece, which references the “legal interpretation” that the Department of Justice has come to over the years: that a sitting president cannot be indicted for a criminal offense.
“As special counsel, appointed by and reporting to the Justice Department, Mueller considered himself bound by its legal interpretation. He further reasoned that since he could not indict President Trump no matter how strong the evidence against him, it would be unfair to conclude in his report that Trump had committed a crime, because without a trial, Trump would not have an opportunity to clear his name. Thus, Mueller’s reticence stemmed from a concern for fairness, not from any doubt about the evidence. He noted that had he concluded that the president had not obstructed justice, he would have said so. Instead, he wrote that the report ‘does not exonerate’ Trump.” (emphasis added)
Cole’s summary in the New York Review of Books can be found here:
In March 2019, Attorney General Barr put his own spin on the report a month before releasing a somewhat redacted report to the public.
https://www.wbur.org/cognoscenti/2019/04/18/redacted-mueller-report-steve-almond
As Steve Almond (NPR) points out in the link just above, “. . . we live in a democracy shaped by profit and partisanship and spectacle, not public morality.” Sadly, what was hoped to be a truthful exposition from an objective source (Mueller) got spun by Barr weeks before the somewhat redacted report was released. Predictably, and without delay, the President trumpeted that the report signaled his “total exoneration,” which in turn triggered confirmation bias among his supporters, nearly all of whom were predisposed to see no wrongdoing. Presumably, most of those supporters have not read the full report, which actually puts Trump in a very unfavorable light.
As Miriam Bair, a law professor at the University of Brooklyn put it,
“Those who slog through the special counsel’s report may find surprising the sheer amount of time that Trump spent directing his aides to say or do things on his behalf that were either untrue or aimed at undermining the Mueller investigation. Among the vignettes that stand out are the president’s failed attempt to have K.T. McFarland draft a statement, the day after he offered her the ambassadorship to Singapore, denying Trump’s involvement in Michael Flynn’s efforts to discuss American sanctions with Russian officials; the president’s unsuccessful pressure on Don McGahn to fire the special counsel; and the president’s (also unsuccessful) attempts to use Corey Lewandowski to direct Jeff Sessions to truncate the special counsel’s investigation.”
“All of these efforts are damning, particularly in the aggregate—but they also demonstrate the challenges inherent in an obstruction case. The facts are muddy. There are a lot of moving parts, and it’s difficult to keep track of all the details. The portrait they paint nevertheless falls far short of an exoneration.”
Some Democrats have insisted on seeing the full report, but it’s hardly necessary to see the unredacted version to conclude that President Trump, aside from any “legalities,” did what he could to obstruct the investigation.
As former solicitor general Walter Dellinger has written, we don’t need to see more of the Mueller report to know that high crimes and misdemeanors were committed by President Trump.
Dellinger concludes, “The report lays out in detail specific acts of obstruction by the president, as well as the extensive evidence that backs up those claims. More than 900 former federal prosecutors (including Republicans and Democrats) have publicly declared that, if anyone else had committed those same acts, they would be under indictment.”
In the words of these former prosecutors, which can be found at
https://medium.com/@dojalumni/statement-by-former-federal-prosecutors-8ab7691c2aa1
“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.”
The policy against indicting a sitting president was first promulgated by the Justice Department, a branch of the Executive Branch of the US government, when Robert Bork was Attorney General, after the so-called “Saturday Night Massacre.” Younger readers should understand a quick bit of history here: Archibald Cox was the Special Prosecutor assigned to investigate Watergate.
“On October 20, 1973, in an unprecedented show of executive power, Nixon ordered Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus to fire Cox, but both men refused and resigned their posts in protest. The role of attorney general then fell to Solicitor General Robert Bork, who reluctantly complied with Nixon’s request and dismissed Cox. Less than a half hour later, the White House dispatched FBI agents to close off the offices of the Special Prosecutor, Attorney General and Deputy Attorney General.”
https://www.history.com/news/what-was-the-saturday-night-massacre
Robert Bork then began what became a series of Justice Department opinions on the advisability of indicting a sitting President. (See this link from Professor Garret Epps, of the University of Baltimore).
https://www.theatlantic.com/ideas/archive/2018/05/presidential-indictment/560957/
Attorney General Barr not only agrees with the DOJ Office of Special Counsel opinion that a sitting president cannot be indicted, but goes well beyond that to espouse an extreme version of the “unitary executive” theory. No one asked him to, but in June of 2018, Barr sent a memo to Deputy Attorney General Rod Rosenstein and Assistant Attorney General Steve Engel, questioning the legal basis for the Mueller investigation.
In one “jaw-dropping” sentence, Barr proclaimed that, “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch.”
Any number of Constitutional scholars, and even some politicians of the Republican stripe, see this as unfounded in law, history, or precedent. But some versions of “the unitary executive” have been supported by Justices such as Antonin Scalia. From a Politico report by Eliana Johnson, we find this:
“Barr made his first imprint in this battle as head of the Justice Department’s Office of Legal Counsel in the George H.W. Bush administration, when he authored a controversial memo giving the FBI the right to seize fugitives abroad without the consent of the foreign government in question. As deputy attorney general, he told George H.W. Bush he had the power to send U.S. military forces into Iraq without congressional authorization. . . . Conservative heroes from Robert Bork to the late Justice Antonin Scalia have been advocates of this theory. Bork carried out President Richard M. Nixon’s directive, in the midst of the Watergate scandal, to fire independent special prosecutor Archibald Cox because he determined the president had the right to do so. Scalia, in a 1988 dissenting opinion, argued that the president had the power to fire any executive branch official, including an independent counsel.”
The current use of the unitary executive theory has been put to use by the President’s attorneys in resisting any oversight by the now Democratically controlled House of Representatives. Both Barr and the President’s attorneys are asserting that, under the “unitary executive” theory, “Congress has essentially no authority to investigate any president for anything.”
In the words of the President’s attorney, “Congress can’t investigate to see if a law is being broken, can’t inform the public of wrongdoing by the executive and can’t look for presidential conflicts of interest or corruption, because that would be ‘law enforcement.’” This argument rests on a distinction between “law enforcement” and “legislative purpose.” We will have to wait for the Supreme Court to rule whether this distinction makes any sense vis a vis the architecture of the U.S. Constitution and prior Supreme Court precedents. Legal scholars say that Barr’s memorandum goes well beyond earlier statements and theories about “the unitary executive,” and that courts are unlikely to follow it. Still, only time –– and contentious public arguments before the Court that proclaims “Equal Justice Under Law” –– will tell.
Trump’s conduct tells us that loyalty is something that he often demands, as in his public dressing down of Jeff Sessions, the former AG, for not protecting him from the Mueller investigation. Presumably, Trump appreciated Barr’s unsolicited defense of “the unitary executive,” and Barr contends that he is being loyal to his concept of the unitary executive and not this President in particular.
Democrats, predictably, are likely to see only partisanship loyalty. In any business organization, it is possible for its employees to have loyalty (or fealty) to a mentor/superior who can boost their career prospects, whether or not it serves the interests of the organization as a whole. See Robert Jackall, Moral Mazes (1983). But even if Barr’s “true” motivation is to upholding the “unitary executive” concept and not loyalty to Trump, it is far from clear why this would require him to misrepresent the truth about the Mueller report and what he heard from Mueller after releasing his 4 page summary.
http://nymag.com/intelligencer/2019/05/bill-barr-didnt-commit-perjury-but-still-misled-congress.html
Again, regardless of whether Barr’s testimony is “perjury” and prosecutable, it’s clear that he misrepresented the report in several important and serious ways.
https://www.theatlantic.com/ideas/archive/2019/05/barr-misled-the-publicand-it-worked/588463/
This goes beyond being loyal to a legal concept of the unitary executive.
It is not clear what has motivated Mr. Barr to act and speak as he has. But his concept of loyalty, as well as “the unitary executive,” is a danger to democratic republicanism and to the rule of law. Here’s where, we must distinguish between Barr’s theory of presidential power and the creeping appropriation of power that has been building for many years. For example, in foreign policy, the Executive branch has been expanding its power to act unilaterally for many years.
https://www.smithsonianmag.com/history/power-and-the-presidency-from-kennedy-to-obama-75335897/
Trump is now exercising powers that Congress has given away over the years. As noted by James Goldgeier and Elizabeth Saunders for the Council on Foreign Relations,
“In reality, the problem goes well beyond Trump, and even beyond the well-documented trend of increasing presidential power. Constraints on the president—not just from Congress but also from the bureaucracy, allies, and international institutions—have been eroding for decades. Constraints are like muscles: once atrophied, they require bulking up before the competitor can get back in the game. Trump did not create the freedom of action he is now routinely displaying. He has merely revealed just how difficult it is to prevent it.”
https://www.cfr.org/article/unconstrained-presidency-checks-and-balances-eroded-long-trump
And presidential power has been expanding domestically, as well. During the Obama presidency, Republicans on Capitol Hill criticized Obama for acting like an “emperor” in domestic matters. As the New York Times put it,
“Blocked for most of his presidency by Congress, Mr. Obama has sought to act however he could. In the process he created the kind of government neither he nor the Republicans wanted — one that depended on bureaucratic bulldozing rather than legislative transparency. But once Mr. Obama got the taste for it, he pursued his executive power without apology, and in ways that will shape the presidency for decades to come.”
Trump has issued his own raft of executive orders, many of which simply reversed things Obama did. What is different now is an assertion of executive power that does not just bypass Congressional law-making in favor of executive rule-making, but also tells Congress it has no legislative authority to demand documents or testimony from agencies and employees of the Executive Branch.
On this Constitutional view of Executive Power, the investigations into Watergate in the Nixon Administration or Whitewater in the Clinton Administration would not be legitimate even though both ended with impeachment or the threat of impeachment.
As the conservative Heritage Foundation wrote in 1988,
“. . . the great Federal Convention of 1787 was remarkably free of ideological rancor. There were no liberal or conservative factions contending for power in Philadelphia, let alone libertarians, egalitarians, or socialist splinter groups. The Convention functioned under a broad consensus respecting our fundamental principles of government. There were no great debates on the merits of separation of powers. No one questioned the need for rotation of officeholders. The desirability of bicameralism was taken for granted. Most everyone agreed that a democratic republic, operating under enumerated and thus limited powers, was the best political regime for the American people.”
https://www.heritage.org/political-process/report/the-constitution-conservative-perspective
That is, that there should be “checks and balances” between the three branches of government was well understood. The Supreme Court, largely “conservative,” or appointed by Republicans, may come to embrace this interpretation of the “unitary executive” theory, but in doing so, it would also eschew the traditional view that the Framers sought “checks and balances” and separation of powers among the three Constitutional branches of government.
Effectively, the Barr view is that the President is “neither above the law nor below the law.” He is the law. Even if that view becomes “perfectly legal,” it’s wrong. We have Presidents, and the Congress, and the Courts, not a King.
Here we’ll give the “last word” to Garret Epps, Professor of Law at the University of Baltimore, who recently wrote:
“No president I know of has asserted a blanket power to reject any request that doesn’t suit him—until Donald Trump. No president I know of has rejected requests on the grounds that the committee requesting is controlled by Democrats—until Donald Trump. The ongoing battle between this administration and the House committees is not, at heart, a legal dispute at all; it is an assertion by a president that the law and the Constitution are simply irrelevant when they conflict with his will.”