An expansive view of presidential power
The NY Times reports that Trump has decided on Barr as Attorney General.
Mr. Barr has criticized aspects of the Russia investigation, including suggesting that the special counsel, Robert S. Mueller III, hired too many prosecutors who had donated to Democratic campaigns. Mr. Barr has defended Mr. Trump’s calls for a new criminal investigation into his 2016 opponent, Hillary Clinton, including over a uranium mining deal the Obama administration approved when she was secretary of state.
“There is nothing inherently wrong about a president calling for an investigation,” Mr. Barr told The New York Times last year. “Although an investigation shouldn’t be launched just because a president wants it, the ultimate question is whether the matter warrants investigation.”
Mr. Barr added then that he saw more basis for investigating the uranium deal than any supposed conspiracy between Mr. Trump’s associates and Russia. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” he said.
Mr. Barr has assembled a “generally mainstream G.O.P. and corporate” reputation, Norman L. Eisen, who served as special counsel for ethics and government overhaul under President Barack Obama, said on Thursday. But he predicted that Mr. Barr would be vigorously vetted because of what he saw as blots on Mr. Barr’s record, including his push for scrutiny of the mining deal, involving a company called Uranium One.
Mr. Barr “has put forward the discredited idea that Hillary Clinton’s role in the Uranium One deal is more worthy of investigation than collusion between Trump and Russia,” Mr. Eisen wrote in a text message. “That is bizarre. And he was involved in the dubious George H.W. Bush end of term pardons that may be a precedent for even more illegitimate ones by Trump.”
One of his claims to fame is a sweeping justification of presidential power.
In July 1989, shortly after his appointment to the Office of Legal Counsel, Mr. Barr sent an apparently unsolicited 10-page memo to top agency and department lawyers across the executive branch urging vigilance in pushing back against ways in which Congress might try to intrude on what he saw as the rightful powers of the president. It covered topics such as “attempts to gain access to sensitive executive branch information” and efforts to limit a president’s power to fire a subordinate official without a good cause.
“It is important that all of us be familiar with each of these forms of encroachment on the executive’s constitutional authority,” Mr. Barr wrote. “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”
Yes, let’s make sure to protect one-person rule at the expense of the more diffuse power of the legislative branch. What could go wrong?
Years later, in 2005, after the leaking of a secret George W. Bush administration memo blessing the torture of terrorism detainees despite anti-torture laws and treaties, Neil Kinkopf, a Georgia State law professor who worked in the Office of Legal Counsel during the Clinton administration, pointed back to Mr. Barr’s 1989 memo as a precursor to the torture memo’s vision of unfettered executive power.
“Never before had the Office of Legal Counsel, known as the O.L.C., publicly articulated a policy of resisting Congress,” Mr. Kinkopf wrote in a Legal Affairs essay. “The Barr memo did so with belligerence, staking out an expansive view of presidential power while asserting positions that contradicted recent Supreme Court precedent.”
And that will be why he is Trump’s choice.
These people all claim to love original intent, but few of them seem to comprehend what that actually means. The founders deliberately gave the president few powers, and made sure those were checked by Congress. Over the course of the 20th century, presidents have claimed more and more power for themselves, and Congress has acquiesced. Every president in my lifetime has moved those powers further and further toward absolute (though still nowhere close). Trump seems to want to bulldoze over what little remains of checks on presidential power, and it looks as though he might do it – again, with an acquiescent Congress full of Republican toadies.
By the way, original intent is sort of ridiculous in a rapidly changing country, and while our constitution was not made easy to change, it is obviously changeable, so even the founders did not expect it to be a dead document but a living one, that developed with the times. Which is good, because some of the things they put in it were quite awful.