Buried behind our president’s endless stream of lies and malicious self-serving remarks are actions that far transcend any reasonable understanding of his legal authority. Donald Trump disdains, more than anything else, the limitations of checks and balances on his power. Witness his assertion of a right to flout all congressional subpoenas; his continuing refusal to disclose his tax returns, notwithstanding Congress’s statutory right to secure them; his specific actions to bar congressional testimony by government officials; and his personal attacks on judges who dare to subject the acts of his administration to judicial review. More blatant yet are his recent assertion of a right to accept dirt on political opponents from foreign governments, and his declaration of a national emergency, when he himself said he “did not need to do this,” he just preferred to “do it much faster.”
Attorney General William Barr has not had the lead public role in advancing the president’s claims to these unprecedented powers, which have come to us, like most everything about this president, as spontaneous assertions of Trump’s own will. To the contrary, in securing his confirmation as attorney general, Barr successfully used his prior service as attorney general in the by-the-book, norm-following administration of George H. W. Bush to present himself as a mature adult dedicated to the rule of law who could be expected to hold the Trump administration to established legal rules. Having known Barr for four decades, including preceding him as deputy attorney general in the Bush administration, I knew him to be a fierce advocate of unchecked presidential power, so my own hopes were outweighed by skepticism that this would come true. But the first few months of his current tenure, and in particular his handling of the Mueller report, suggest something very different—that he is using the office he holds to advance his extraordinary lifetime project of assigning unchecked power to the president.
On March 24, just two days after he received the Mueller report, Barr issued a terse four-page letter purporting to summarize the report’s major conclusions—and drawing one more that was critical—while offering virtually no facts. It was not until 25 days later, on April 18, that the redacted report itself appeared, after a stage-setting press conference by Barr the same morning. Its 448 pages raised severe doubts about the accuracy of some of Barr’s characterizations, and his ensuing testimony on Capitol Hill was an exercise in curmudgeonly obfuscation, as he held his ground while explaining almost nothing.
Barr’s March 24 letter stated accurately that “the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government” with regard to proven Russian efforts to hack computers and influence the election. He has since repeatedly misstated this conclusion as a finding of “no collusion,” which it is not. Mueller documented plenty of collusion between Russians and Trump’s agents, even as he failed to find evidence beyond a reasonable doubt of a conspiracy (meaning agreement) to disrupt the election.
As to the investigation of possible obstruction of justice, while noting the report’s explicit statement that it could not “exonerate” the president, Barr’s letter said that Mueller’s approach was just to “describe the facts of his obstruction investigation without reaching any legal conclusions and leave it to the Attorney General to determine whether the conduct described … constitutes a crime.” In fulfillment of this self-assigned duty, the letter reports that “Deputy Attorney General Rod Rosenstein and I have concluded that the evidence developed … is not sufficient to establish that the President committed an obstruction-of-justice offense.”
The attorney general’s release of a redacted copy of the Mueller report on April 18, including the extensive facts recited in Volume II on the topic of obstruction of justice, produced great consternation. Many people who had supported Barr’s nomination because they thought he could be counted on to play straight were perplexed. He was sharply criticized for misleading the public about the findings of the investigation, which plainly chronicled numerous acts aimed at impairing the investigation.
Mueller himself had noted in a letter to the attorney general on March 27 (but not released until much later) that the March 24 letter “did not fully capture the context, nature, and substance of this Office’s work and conclusions.” Following the release of the report, more than a thousand former prosecutors (including me) signed a letter stating that under conventional understandings of what constitutes obstruction, the report made a very strong case. It would have been an easy call to indict Trump, were it not for the categorical Office of Legal Counsel opinion foreclosing federal criminal charges against any sitting president.
Many people also scratched their heads in wonder that Rod Rosenstein—the dogged deputy attorney general who had appointed Mueller in the first place, then oversaw his investigation for two years while Sessions was recused, and tolerated all manner of personal public abuse from the president—could have agreed to a finding of legally insufficient evidence when the report itself said that it could not exonerate the president.
When asked to respond to allegations that he was “protecting or enabling the president,” Barr’s grumbled response was characteristically uninformative, noting that he was acting on “the law, the facts, and the substance,” and that the criticism just “goes with the territory of being the attorney general in a hyper-partisan time.” So what are we to make of Barr’s conclusion that the overwhelming evidence of presidential interference uncovered by the Mueller investigation would not support an obstruction charge, even if OLC had not said that a sitting president can never be charged?
One possible answer is that Barr’s goal has simply been to mislead the public about the facts at issue, and thus back up the president’s claim that he did not willfully interfere with the investigation. That would make Barr part of a very large group of people who, for reasons known only to themselves, have seen fit to support Trump in his lies and abuses. Their reward, in most cases, has been to be mercilessly trashed by their master and dismissed for being weak or stupid.
Those who were most hopeful that Barr would restore some regularity to our government are among those most puzzled by recent events, since there is no imaginable reason for Barr to seek such a disreputable role for himself. At his stage of life, after a successful legal career and distinguished government service, why would he accept the job of lying to defend the president? And, especially, why would he go to such extraordinary and unconventional lengths to pursue the position by submitting, on June 8, 2018, a lengthy and apparently unsolicited memorandum attacking the Mueller investigation?
There can be no doubt that the primary effect of Barr’s conduct to date has indeed been to befuddle and mislead, and create a public misimpression, for those who have not read Mueller’s report, that the president may not have interfered with the investigation. But Barr never said that the president did not in fact interfere, only that there is no basis in fact and law to support a finding of criminal obstruction. Indeed, a careful review of Barr’s conduct suggests that his mission is far more grandiose that just misleading people about the facts.
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.
It is not at all surprising that Bill Barr, with this vision of the law in mind, could reach his ultimate conclusion on obstruction in just a few days, or that in subsequent public appearances he has never offered to explain his conclusions by referencing what Trump actually did. The facts simply don’t matter under Barr’s understanding of the Constitution, in which “the President alone is the Executive branch … the sole repository of all Executive powers conferred by the Constitution,” and Congress may not restrict his exercise of discretion in using those powers. Why worry about facts if, as Trump has claimed repeatedly, the president has unlimited power to direct or terminate any investigation, including of himself?
This understanding of recent events also may explain how Rosenstein could sign on to a conclusion that the president had not provably committed obstruction of justice, despite the interference in the investigation that Mueller documented, and despite slaving in the vineyards of Justice for two years to preserve the integrity of Mueller’s fact-finding process. The answer may be that facts are facts, and not to be messed with—but that law, especially constitutional law, is often subject to interpretation. And if Rosenstein believed that Barr’s extreme view of the president’s constitutional powers passed the red-face test, he could have rationalized that he had a legal duty to defer to his superior. Rosenstein’s struggle to maintain the factual integrity of the Mueller investigation could thus be brought to a close by his own deference to a legal judgment that an obstruction case against the president is legally impossible, regardless of the facts.
Finally, this view of Barr’s conduct sheds a new light on why he not only accepted but sought out—indeed, may have craved—the opportunity to serve as attorney general under Donald Trump. Eighteen months serving under the sedate George H. W. Bush afforded him little opportunity to seriously contend that the president is the executive branch, or otherwise argue for almost unlimited presidential powers.
Trump and his endless assertions of power offer countless opportunities to pick and choose those executive-power claims with the best chance to succeed in court. Thus, in the Trump administration, Barr may have found the ideal setting in which to pursue his life’s work of creating an all-powerful president and frustrating the Founders’ vision of a government of checks and balances. His strange pursuit of an investigation of the investigators—on the supposition that the FBI may have been improperly “spying” on the Trump campaign when they investigated Trump associates who were found to have met with various Russians—may be the opening public chapter in that endeavor.
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