Rejecting mainstream constitutional views, William P. Barr, the deputy attorney general, told Mr. Bush that he wielded unfettered power to start a major land war on his own — not only without congressional permission, but even if Congress voted against it.
“Mr. President, there’s no doubt that you have the authority to launch an attack,” Mr. Barr said, as he later recalled.
“Trump Says He Alone Can Do It. His Attorney General Nominee Usually Agrees.” by Charlie Savage, New York Times
“The executive Power shall be vested in a President of the United States of America.” – Article 2, Section 1, United States Constitution
Is this power – clearly granted – absolute, without any exception? Or (like the First Amendment, which guarantees freedom of speech, but not the right to shout, ‘Fire!’ in a crowded theater) is it of more limited scope? To put the question another way: Is the president’s executive power unchecked by other provisions of the Constitution, other branches of government, and the rule of law?
William Barr espouses – take your pick – a “maximalist theory of presidential power” or a “maximalist theory of executive power.” (I regard the two expressions as interchangeable for the purposes of this post.) I had never encountered the phrase (in either version) before Donald Trump’s nomination of Brett Kavanaugh to the Supreme Court. An article in Slate (last July), “Kavanaugh Must Explain His Views on Presidential Immunity,” expressing concern that the nominee appeared to believe that the Constitution shielded a president from criminal investigation and indictment by the Department of Justice (with ominous implications for the Mueller investigation), introduced the expression:
‘Judge Kavanaugh helped pioneer a maximalist theory of presidential power associated with the notion of a “unitary executive.”’
As suggested in this quote, the debate about presidential power (if not the recent phrasing), is hardly new.
The concept of the president as a unitary executive was at the time the Constitution was drafted and ratified (1787-1788). While there is little disagreement that the president possesses executive authority, the past half century has seen considerable debate about the limits of this authority. During the Nixon administration the War Powers Resolution of 1973 and Arthur Schlesigner’s book (published the same year), The Imperial Presidency, touched directly on the issue.
More recently, John Yoo’s memos sanctioning presidential-approved torture of terrorist suspects brought the issue to the fore:
In March 2009, about a month after President George W. Bush and Dick Cheney left office, Scott Horton declared that “[w]e may not have realized it, but in the period from late 2001-January 19, 2009, this country was a dictatorship. That was thanks to secret memos crafted deep inside the Justice Department that effectively trashed the Constitution.” Some of the most infamous of these memos were drafted by John Yoo, an Office of Legal Counsel attorney from 2001-2003. Yoo and others – most notably, Cheney’s counsel, David Addington – advanced the unitary executive theory, a theory of presidential power Cheney had personally favored for decades.
The unitary executive theory, as implemented by the Bush administration, was claimed to justify effectively unchecked presidential power over the use of military force, the detention and interrogation of prisoners, extraordinary rendition and intelligence gathering.
“Exploring the Limits of Presidential Power,” by Chris Edelson, American Constitution Society
Even at the conservative Cato Institute, the expansive view of the unitary executive has been criticized as problematic:
‘… Kavanaugh does not consider the possibility that concentrating even greater power in the hands of a single person — the president — also poses grave risks. The “unitary executive” theory underlying his opinion made sense in a world where the executive branch was confined to the comparatively narrow range of powers granted by the original meaning of the Constitution. It is far more problematic today, including on originalist grounds.’
William Barr’s role, as described at the beginning of this post, concerned the George H.W. Bush administration. Barr relates the story with gee-whiz enthusiasm at offering legal counsel to the Commander in Chief, who addressed him as ‘Bill,’ to oral history scholars at UVA’s Miller Center. [Note: the last line of the excerpt has been redacted.]
So I went over to the meeting. It was one of these out-of-body experiences, because any constitutional lawyer would love to be asked this question under these circumstances. The President said, Bill—and I’m sure part of this was display. I realized that, and therefore answered accordingly. There was no doubt in my mind that he could do it.
He said, Bill, I’ve been reading these articles. This op-ed piece the other day said I don’t have the authority to launch an attack on the Iraqis. What’s your view, what’s the Justice Department’s view on whether I have the authority? I’m sort of flattered that he asked me a cold question without having discussed it with me first, because it meant he knew what answer I was going to give him.
I said, Mr. President, there’s no doubt that you have the authority to launch an attack. I explained why I thought he did under the Constitution as Commander-in-Chief, and I gave him some different theories. After saying he could do it, I gave him a secondary theory—which I was sort of proud of at the time, it was a bootstrap argument. I said, Now another reason here, Mr. President, is—even for the critics who would say that that wasn’t true—there’s no doubt that you have the authority to put 500,000 troops in the field. Congress authorized—through the approval of the UN whatever they are, resolutions, and through their authorization and all that stuff, Congress has definitely approved you putting 500,000 troops over there face-to-face with the Iraqi Army.
We have intelligence that they have weapons of mass destruction—chemical weapons, biological weapons—and your job as Commander-in-Chief is to make sure those troops are not preemptively attacked. If you feel as Commander-in-Chief that in order to protect your Army in the field you have to launch first, you absolutely can do that. Which I thought was an ingenious argument, ████████████████████████████████████████
William P. Barr Oral History, Assistant Attorney General; Deputy Attorney General; Attorney General – Transcript
In December, after Trump had nominated him to be Attorney General, the Wall St. Journal broke a story revealing that Barr had sent a private, unsolicited memo (because he was “deeply concerned with the institutions of the Presidency and the Department of Justice”) advising DOJ that Mueller’s investigation needed to be reined in as it related to obstruction of justice.
Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution.
…
Second, in a further unprecedented step, Mueller would apply this sweeping prohibition to facially-lawful acts taken by public officials exercising of their discretionary powers if those acts influence a proceeding. Thus, under this theory, simply by exercising his Constitutional discretion in a facially-lawful way — for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power — a President can be accused of committing a crime based solely on his subjective state of mind. As a result, any discretionary act by a President that influences a proceeding can become the subject of a criminal grand jury investigation, probing whether the President acted with an improper motive.
Casting doubt on the legitimacy of the special counsel’s probe of obstruction, Barr’s memo appealed to his view that the Constitution provided elections every four years, and impeachment by Congress, as the remedy for an errant executive:
In framing a Constitution that entrusts broad discretion to the President, the Framers chose the means they thought best to police the exercise of that discretion. The Framers’ idea was that, by placing all discretionary law enforcement authority in the hands of a single “Chief Magistrate” elected by all the People, and by making him politically accountable for all exercises of that discretion by himself or his agents, they were providing the best way of ensuring the “faithful exercise” of these powers. Every four years the people as a whole make a solemn national decision as to the person whom they trust to make these prudential judgments. In the interim, the people’s representatives stand watch and have the tools to oversee, discipline, and, if they deem appropriate, remove the President from office. Thus, under the Framers’ plan, the determination whether the President is making decisions based on “improper” motives or whether he is “faithfully” discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process.
‘Re: Mueller’s “Obstruction” Theory’ by Bill Barr
Today we learned that Barr sent the memo to more than a dozen people, including virtually every attorney close to Trump: ‘Barr, who reportedly interviewed to be Trump’s defense lawyer last year, shared the memo with members of Trump’s legal team around the time he submitted it to Rosenstein and Assistant Attorney General Steven Engel, according to a letter Barr wrote to Senate Judiciary Chairman Lindsey Graham late Monday night. White House Special Counsel Emmet Flood and White House Counsel Pat Cipollone both received a copy of the memo, Barr told Graham, and he discussed its contents with Trump’s lawyers Marty and Jane Raskin and Jay Sekulow, as well as with Jared Kushner’s attorney Abbe Lowell. “My purpose was not to influence public opinion on the issue, but rather to make sure that all of the lawyers involved carefully considered the potential implications of the [obstruction] theory,” Barr wrote.’
Confirmation hearings for Barr begin today. The views of the next Attorney General (who, in the absence of a bombshell revelation, will almost certainly be William Barr) regarding presidential power will be extraordinarily consequential. Donald Trump has felt less constrained by democratic norms and more hostile to institutions of government (including the FBI, other intelligence agencies, DOJ, the courts, and Congress) than previous presidents. Putin’s fingerprints are all over the 2016 election. The future direction of, and public access to, the Mueller investigation will be in the balance as Barr serves as Attorney General for the second time.
