Bill Barr versus the Constitution

One of Bill Barr’s biggest critics is Donald Ayer, who was U.S. Deputy Attorney General under George H. W. Bush. In June 2019, Ayer published an article in The Atlantic that explained how Barr sees his role as attorney general and his relationship with Donald Trump. Here is the meat of it:

For many decades, Barr has had a vision of the president as possessing nearly unchecked powers. That vision is reflected in many OLC opinions, and in arguments advanced and positions taken since the 1970s. But the most compelling source for present purposes is Barr’s memorandum submitted just a year ago. Notable near its beginning is his statement that he was “in the dark about many facts,” followed immediately and repeatedly by vehement assertions that “Mueller’s obstruction theory is fatally misconceived,” and if accepted “would have grave consequences far beyond the immediate confines of this case and … do lasting damage to the Presidency.”

As this introduction suggested, Barr’s memo rested not on facts, but on a much more sweeping claim that as a matter of law, the obstruction-of-justice statute, 18 U.S.C. Section 1512, cannot possibly apply to any conduct by the president that is arguably at issue. In a five-page section, Barr’s memo advanced arguments based on interpreting the words of the statute. Then in a much longer second section, he got to the meat of the matter. He claimed that, regardless of whether the statute is correctly understood to have been intended to apply to actions by the president to interfere with an investigation of himself—as the Mueller report concluded it was—it would be an unconstitutional infringement on the president’s Article II powers to apply that law to the president.

The vehemence of Barr’s memo is breathtaking and the italics are all his: “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. As such he is the sole repository of all Executive powers conferred by the Constitution.”

Thus, “the Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President.” That authority is “necessarily all-encompassing,” and there can be “no limit on the President’s authority to act [even] on matters which concern him or his own conduct.” Because it would infringe upon the total and utterly unchecked discretion that Barr believes Article II confers on the president, “Congress could not make it a crime for the President to exercise supervisory authority over cases in which his own conduct might be at issue.” Indeed, according to Barr, “because the President alone constitutes the Executive branch, the President cannot ‘recuse’ himself.” Thus, in Barr’s view, the only check on gross misconduct by the president is impeachment, and the very idea of an independent or special counsel investigating the president is a constitutional anathema.

What’s fascinating is that Barr has been, in effect, conducting a master class on why this view is absolutely wrong and dangerous to our nation. And he’s too lost in his own head, in his own ideology, to see that. If applied to a president with intelligence and integrity, maybe it would have worked to the nation’s benefit. But Donald Trump? Seriously?

As I keyboard, Barr is testifying to the House Judiciary Committee. I take it it’s not going all that well for Barr; you can read live updates here and here. However, one of my Facebook friends watching it says the Dems on the committee are doing way too much grandstanding and not letting Barr answer questions, which is self-defeating.

And Donald Ayer has another article at The Atlantic. Here is the first paragraph:

Throughout his first year in office, Bill Barr worked overtime to advance the personal and political interests of President Donald Trump, and to alter the structure of American government to confer virtually autocratic powers on the president, in accordance with views that Barr has held for several decades. Now, less than 100 days before the election, the attorney general’s focus has narrowed and his methods have become more transparently outrageous: Facing gross mismanagement of the coronavirus pandemic, a diminished economy, and sinking presidential poll numbers, Barr is using the most intrusive and offensive tools he can command simply to extend his and the president’s tenure in office into a second term.

Indeed, there are those who think that Barr is the real power behind the throne.

Nichols, part of the Lincoln Project, said in another tweet that Barr is now the de facto head of the Executive Branch.

Today, Greg Sargent writes that William Barr’s new defense of Trump actually unmasks his corruption. You need to read the whole thing to get the argument. See also Heather Cox Richardson, from last night:

Tonight, [Barr] released a combative opening statement which begins by slamming “the grave abuses involved in the bogus ‘Russiagate’ scandal,” despite the fact that, in December 2019, the Justice Department’s own inspector general, Michael Horowitz, found that the investigation had been initiated properly and without political bias. The Republican-led Senate Intelligence Committee has also unanimously supported the conclusion of the Intelligence Community that Russia attacked the 2016 election to benefit candidate Trump. …

…There was, in Barr’s opening statement, a line that jumped out. He wrote that what is happening in Portland, Oregon, where protesters have vandalized a federal courthouse, “is, by any objective measure, an assault on the Government of the United States.”

No, it is not.

The interference of a foreign country in our elections is an assault on the government of the United States. Undermining the rule of law is an assault on the government of the United States. Vandalizing a courthouse does not threaten our nation. It is vandalism that should result in arrests by local police officers, as it has.

That the Attorney General is characterizing local vandalism as an assault on our national government is worrisome. It suggests that, less than four months before an election, he intends to keep sending into Democratic cities federal officers who are loyal to him and his president.

And if it happens, that will be an assault on the government of the United States, for sure.

Barr has a lot to answer for, and he can’t be removed from his position as long as Republicans dominate the Senate. But there’s always next year. Barr has to be held accountable for what he’s done.

Stuff to Read

Michelle Goldberg, Twilight of the Liberal Right

Liberal democracy per se was never the animating passion of the trans-Atlantic right — anti-Communism was. When the threat of Communist expansion disappeared, so did most of the right’s commitment to a set of values that, it’s now evident, were purely instrumental.

Paul Krugman, The Cult of Selfishness Is Killing America

You see, the modern U.S. right is committed to the proposition that greed is good, that we’re all better off when individuals engage in the untrammeled pursuit of self-interest. In their vision, unrestricted profit maximization by businesses and unregulated consumer choice is the recipe for a good society.

Support for this proposition is, if anything, more emotional than intellectual. I’ve long been struck by the intensity of right-wing anger against relatively trivial regulations, like bans on phosphates in detergent and efficiency standards for light bulbs. It’s the principle of the thing: Many on the right are enraged at any suggestion that their actions should take other people’s welfare into account.

This rage is sometimes portrayed as love of freedom. But people who insist on the right to pollute are notably unbothered by, say, federal agents tear-gassing peaceful protesters. What they call “freedom” is actually absence of responsibility.

Rational policy in a pandemic, however, is all about taking responsibility. The main reason you shouldn’t go to a bar and should wear a mask isn’t self-protection, although that’s part of it; the point is that congregating in noisy, crowded spaces or exhaling droplets into shared air puts others at risk. And that’s the kind of thing America’s right just hates, hates to hear.

Jordaon Weissmann, The Republicans Have Written a Pro-Virus Bill

Update: Here’s a bit of the testimony today.

I must add that Rep. Jayapal is talking about state government. Barr’s justification for sending goons to Portland is that they were to protect federal buildings, although by all accounts that hasn’t stopped them from detaining people not on federal property.