William Barr is Wrong on Impeachment and Executive Power

During a lecture at the Federalist Society on November 15, Attorney General William Barr presented a radical re-interpretation of what the framers of the Constitution had in mind when they set up the powers of three co-equal branches of government.

According to the Attorney General, what he perceives as encroachments on executive power “contravenes the Framers’ clear intent to vest that power in a single person, the President.” In his remarks to the far-right group, he decried the courts intervening to curtail Trump’s Muslim Ban and prevent the president’s proposed changes to DACA, claimed that “Congress is increasingly quick to dismiss good-faith attempts to protect Executive Branch equities” and asserted that Article II of the Constitution was intended to grant the president greater powers than the other two branches so that the president would be a “muscular executive” relatively unencumbered by checks and balances. 

Barr also thinks that Trump is under siege by the American people who want him held accountable “Immediately after President Trump won election, opponents inaugurated what they called ‘The Resistance,'” he rationalized. “[T]hey see themselves as engaged in a war to cripple, by any means necessary, a duly elected government.” Barr also claimed that “the left that is engaged in the systematic shredding of norms and undermining the rule of law.” 

Barr’s vision of the power of the president goes far beyond the framers’ intent. These ideas of expansive executive power are helpful to Trump, and to his supporters who are looking for an argument against impeachment that will protect the president. We will hear about these ideas even more as Articles of Impeachment are drafted by the House Judiciary Committee and a trial takes place in the Senate. 

Barr’s arguments clear the way for Trump supporters to claim that Trump was within his rights as president to act as he did with respect to Ukraine—and to reason that his behavior was within the scope of his power as president.

But that’s not true.  

(Charles Edward Miller / Creative Commons)

As the evidence has come out in the impeachment inquiry, over a dozen fact witnesses have overwhelmingly established that Trump intentionally withheld millions of dollars of allocated aid desperately needed by Ukraine to help that ally fight a war on its eastern border against Russia.  That aid was required by law to be disbursed to Ukraine after Congress voted on a bipartisan basis to grant it to our ally—but instead, Trump froze the funds and used the money as leverage to coerce the Ukrainian president, Volodymyr Zelensky, to set two investigations into motion that would help him personally. 

The House Intelligence Committee held hearings on these matters for two weeks—during which time the public heard from over a dozen State Department and Department of Defense aides and Ambassadors, and during which every defense claimed by Trump and his allies was countered by factual testimony. 

Trump claimed no quid pro quo (“I wanted nothing in exchange”), but Ambassador Sondland testified that there was a quid pro quo, and that everyone in Trump’s immediate orbit and at the highest levels of government was in the loop. Trump claimed that the aid money was not held up at his direction, but witnesses have stated under oath that the freeze was at the direction of the president. 

Trump’s defenses have been eroded by corroborating factual testimony, and the president’s supporters who want to defend him in the coming Senate trial, have been looking for something to cling to. Attorney General Barr is trying to give them that—an acceptable argument they can use to defend Trump from conviction.  

Barr is arguing that Trump has been unfairly attacked, and that the courts and Congress should stop “picking on” the president by investigating crimes he may have committed. According to Barr, the president should have the power to do what he wants to do—especially when it comes to foreign policy and investigations. 

You will hear these arguments from Trump supporters, too—including Republican lawmakers. They’ll claim that anyone trying to hem Trump in or get him impeached is denying the will of the voters and trying to overturn the 2016 election. They’ll declare that Trump acted within his rights as president, because he has the vast power to withhold money from a foreign country if he wants to, and he should have total control over all investigations, including ones into himself.  

If you believe any of this, then the damning evidence of the impeachment witnesses can be met with a shrug. That’s exactly why they’re saying it. 

Barr’s comments were so incendiary that he was rebuked by a highly respected group of conservative lawyers: Checks and Balances, a group of constitutional lawyers that asserted Barr’s “interpretation of the law set a dangerous precedent.” They have good reason to say so: Barr’s claim that the founders intended our country to have an essentially unchecked president, whose unlimited powers were more like those of an autocrat or a king than a president, was not what was envisioned by the framers, and it has not been the traditional interpretation of the Constitution. The American constitution delineates three co-equal branches of government that check and balance each other; what Barr is advocating for is a president who is essentially above the law and unfettered by other branches of government.

The argument that the president above the law is also one that Trump’s lawyers are making in numerous federal appeals courts in response to Congressional challenges to Trump’s obstruction. Trump ordered his cabinet members and aides not to respond to subpoenas issued by the House Judiciary and Intelligence Committees. This unprecedented rejection of the power of Congress is a direct challenge to the efforts of the House to fulfill their Article I constitutional duty which includes an oversight role of the executive branch.  

Courts are responding to this constitutional showdown. Judge Ketanji Jackson issued a 120-page opinion in which she shot down the idea that Trump, or any president, is above the law, quoting from Animal Farm that “everyone is equal, but some are more equal than others,” and explaining that the sentiment is what the founders rejected and what she also rejects.  Witnesses subpoenaed by Congress must now come before the House to testify whether the president wants them to or not; by failing to respond to House subpoenas to testify or turn over documents, these witnesses are violating the law.

Our country is fast approaching a constitutional crisis with the pending impeachment trial of Trump—not only because of the impeachment process itself, but because of Trump and Barr’s reactions to it. They are trying to re-shape our democracy by rejecting deeply embedded democratic norms and replacing them with authoritarian executive power.  

“The people who claim they’re conservatives today,” Charles Fried, a Checks and Balances member and Harvard Law professor who urged other conservatives to condemn Barr’s radical revision of presidential power, “are demanding loyalty to this completely lawless, ignorant, foul-mouthed president.”

What the courts, Congress and activists across the country must do is reject that demand—and instead call for accountability and the preservation of our democracy.

About

Sheila Markin Nielsen is a former Assistant U.S. Attorney and author of The Markin Report, a blog on the right side of history and the left side of politics making sense of a world turned upside down.