What William Barr misses about presidential accountability

Last week, Attorney General William P. Barr testified in front of the Senate Judiciary Committee on his apparent attempt to whitewash special counsel Robert S. Mueller III’s findings, particularly those related to potential obstruction of justice by President Trump. In the course of his defense, Barr said, “We have to stop using the criminal justice process as a political weapon.”

His statement echoed language that President George H.W. Bush used when announcing a controversial pardon in the final weeks of his presidency — after consultation with Barr, who was serving his first stint as attorney general. These statements make plain Barr’s view that prosecutorial investigations of executive officials are inherently partisan and, therefore, illegitimate under the rule of law. But this idea calls into question one of the central principles of the American constitutional system: executive accountability.

In Federalist 70, Alexander Hamilton trumpets the advantages of a unitary executive, that is, the notion that all executive branch authority rests with the president, rather than being divided up among different executive officers, as states such as Texas and New York do.

One of Hamilton’s central arguments was that a unitary executive increases accountability: The buck stops with the president. In a divided executive, it could be unclear whether the president or another executive officer should be held to account for unpopular, unscrupulous or unlawful actions. By making the president accountable for all such action, the people will know how to vote in future elections.

Notably, Hamilton’s ideas on accountability extend beyond the president paying at the ballot box for unpopular action. In Federalist 65, he clearly states that a president impeached for misconduct is also “liable to prosecution and punishment in the ordinary course of law.” In other words, the presidency was not designed to be free from prosecutorial inquiry.

Holding the president and other, subordinate executive branch officials to account was central to our constitutional design and the rule of law, part of the delicate compromise between those at the constitutional convention who wanted a weak executive and those who wanted a strong one.

Hamilton’s reasoning on executive accountability has featured prominently in the development of the concept over time. For example, the United States Supreme Court ruled unanimously in Clinton v. Jones that the president is not immune from civil litigation due to the constitutional mandate of executive accountability. Indeed, such accountability was not only allowed, but may well have been necessary to protect the rule of law.

Barr, however, rejects this notion — and did so long before Donald Trump entered the political arena. On Christmas Eve 1992, Bush issued a pardon to former secretary of defense Caspar Weinberger for his role in the Iran-contra affair during the Reagan administration. In violation of U.S. law, Weinberger had allegedly facilitated the sale of American missiles to Iran to help fund the contras in Nicaragua. An independent counsel was appointed to investigate the scandal and a grand jury brought indictments on two counts of perjury and one count of obstructing justice. Weinberger protested the fairness of the indictments, but the evidence of wrongdoing was substantial. (Bush, who was vice president during the Iran-contra affair, was implicated but ultimately not indicted.)

When Bush explained his rationale for the pardon, he did not contest Weinberger’s likely guilt. Instead he praised Weinberger’s long record of service to the nation and his role in bringing down the Berlin Wall and the Soviet Union.

Bush went further, though, not resting on Weinberger’s meritorious service alone. He pivoted to attack the prosecutions — 14 people associated with the Reagan administration were indicted, and 11 convicted — themselves as inconsistent with law’s necessary neutrality. Bush argued that the prosecutions represented “the criminalization of policy differences” and that “[t]hese differences should be addressed in the political arena, without the Damocles sword of criminality hanging over the heads of the combatants.” Reports at the time indicated that Bush worked closely on the pardon with Barr, which is unsurprising given the views Barr espoused last week.

Indeed, when reading this pardon in conjunction with Barr’s testimony, it’s clear that Barr holds a narrow understanding of executive accountability. In both the cases of Weinberger and Trump, prosecutors statutorily shielded from partisan influences found substantial evidence that the figure in question obstructed justice.

Yet because the targets of the investigations were political actors and, ostensibly, the opposition party would benefit from a successful prosecution of them, Barr considers any such prosecution inherently partisan and ill-suited for the courts. In other words, any attempt to investigate whether presidential action was unlawful must be partisan and, therefore, is inappropriate for nonpartisan legal institutions. Instead, as Bush identified in the Weinberger pardon, “the proper forum” for executive accountability was the “voting booth, not the courtroom.”

But this essentially gives the president (and other executive officials) a blank check: Unless misconduct rises to the level of impeachment, or if the partisan realities in Congress render impeachment an impossibility, the president is essentially immune from sanction for breaking the law, at least until leaving office.

This is not how Hamilton and his fellow Founders envisioned the system working. Worried about an out-of-control executive, they aimed to create checks and balances — and accountability. Checks and balances and the rule of law are not just formal institutional arrangements, they are norms of governance that invigorate principles central to the American system of government. Accountability is even more crucial in 2019 than it was in 1787, given how much more power the president wields today than in the 18th and 19th centuries.

When an ideology like Barr’s undermines those norms, the system of accountability carefully crafted by Hamilton and his fellow Founders and developed over two centuries threatens to become unbalanced. The result is a president unmoored from the norms that tether the executive to lawful behavior. That risks the entire American constitutional structure crashing down, as the president asserts himself with little to fear until at least the next election. While executive power has advanced steadily throughout the 20th century, what Barr envisions would be another leap, putting the United States on dangerous ground. It is not too much to ask our presidents not to violate the law. And when they fail to meet that standard, the consequences should be swift and assured.

Trump and the Return of Divine Right

In deploying his pardon power freely and using the Bible to justify family separation, the president is exactly the sort of ruler that Enlightenment thinkers feared.

The heartbreaking scenes on the southern border seem a world away from recent presidential pardons. Sobbing children and bereft parents have nothing in common with Joe Arpaio, Dinesh D’Souza and, most recently, the Oregon ranchers Dwight Hammond and his son, Steven, who had been convicted of arson in 2016 and whom President Trump pardoned on Tuesday. Yet both come down to a relationship between justice and mercy that has a long history — and a cautionary moral for the president.

Family separation shows justice without mercy. The pardon power displays mercy in the name of justice. The administration cites the biblical injunction to obey the powers that be as one explanation for their zero-tolerance policy on immigration. With regard to immigration, it seems, there can be no discretion. By contrast, presidential pardons show how extensive discretion can be, because the Constitution gives the president “power to grant reprieves and pardons for offences against the United States, except in case of impeachment.”

.. Most Enlightenment thinkers were uneasy about the pardoning power. The two greatest oracles for the Constitution’s framers, the French philosopher Montesquieu and the English lawyer William Blackstone, both attacked it. “Clemency is the characteristic of monarchs,”

.. The framers argued that “without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel,” as Alexander Hamilton argued in Federalist No. 74. This was particularly true in “season of insurrection or rebellion,” Hamilton continued, “when a well-timed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth.”

.. With the ratification of the Constitution, George Washington received an array of powers many European monarchs might have envied. The president could veto legislation — something no British monarch had done since 1707

.. He has used the pardoning power as one of his few unfettered prerogatives, in just the undemocratic way Enlightenment thinkers feared. For them, authority flowed from the people, not from God; the pardon was a residue of divine right. When Attorney General Jeff Sessions cites Paul’s epistle to the Romans to justify family separation, he not only revives an argument used to defend absolutism and slavery but also implies there is still a power above the law defined by the Constitution.

.. The president can casually exercise his discretionary power to pardon Mr. Arpaio, who abused prisoners in his care, but then claims he is powerless to end a policy worthy of Sheriff Joe himself.

To win the news cycle, Trump just cheats

Partisan outlets go with President Trump’s versions of events, even when they are demonstrably false. Mainstream outlets feel duty bound to report them, even as they debunk the lies.

.. what Alexander Hamilton taught long ago:

.. the despot’s “object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.’ ”

.. So much of the journalism about Trump is negative because of what he does every day and because hard-working reporters and special counsel Robert S. Mueller III’s investigation regularly turn up embarrassing facts. Therefore, journalists feel obligated to make sure that everyone knows they can be just as tough on Democrats.

.. Looking “partisan” is a grave transgression. Trump and the Republicans try to paint this scarlet letter on the media almost daily.

.. Lord knows, Democrats have their problems. Their own politicians regularly point them out by way of scoring points in the party’s factional wars

.. Left-wing candidates did not fare particularly well because rank-and-filers aren’t interested in ideological warfare and are choosing on the basis of personal qualities — it really helps to be a woman this year.

.. And there’s nothing imbalanced about Trump’s sins dominating the news. It’s not the media’s fault that there are so many of them.

The American Renaissance Is Already Happening

People who read this column know my political ideology: I’m a Whig. If progressives generally believe in expanding government to enhance equality, and libertarians try to reduce government to expand freedom, Whigs seek to use limited but energetic government to enhance social mobility.

Back in the 19th century, during their heyday, Whigs promoted infrastructure projects, public education, public-private investments and character-building programs to create dynamic, capitalist communities in which poor boys and girls could rise and succeed.

Whigs admired people and places that are enterprising, emotionally balanced and spiritually ardent. They had a great historic run — inspired by Alexander Hamilton, led by Henry Clay and Daniel Webster, embodied most brilliantly in the minds of Abraham Lincoln and the early Theodore Roosevelt.

Lin-Manuel Miranda On Disney, Mixtapes And Why He Won’t Try To Top ‘Hamilton’

GROSS: The Sondheim song that’s closest to comic rap is, in my opinion, “Not Getting Married,” which is done…

MIRANDA: (Rapping) Is everybody here? Because if everybody’s here, I’d like to thank you all for coming to the wedding.

GROSS: Do more, do more.

MIRANDA: (Rapping) I’d appreciate your going even more. I mean, you must have lots of better things to do, and not a word of it to Paul. Remember Paul, you know, the man I’m going to marry? But I’m not because I’d never ruin anyone as wonderful as he is. Thank you all for the gifts and the flowers. Thanks to you all for the cards and the showers. Don’t tell Paul, but I’m not getting married today.

GROSS: Anyone who could do that song has an incredible tongue.

MIRANDA: Absolutely.

GROSS: It’s so tricky. It’s so fast, and the words are so – just kind of, like, dense and funny and rhymey (ph). And so, obviously, you know that song by heart more or less. And have you thought about that song a lot in terms of intricate rhyme schemes and what the human voice is capable of without totally tripping up?

MIRANDA: Well, I think about that – honestly, I think about that song more when people ask me, how did you think rap was going to work on Broadway? And I go, nothing in my show is faster than “Getting Married Today” in “Company.”

(LAUGHTER)

MIRANDA: So I don’t know what you’re talking about. There’s so much precedent for the work in both, quote, unquote, “hip-hop” and not in terms of patter for the stage. But, you know, what’s amazing about “Getting Married Today” is it’s also in a master class in making a lyric easy. There are consonants on which you waste air. H – there’s no H’s in that because if you say ha, you’ve lost half the air in your lungs. So it’s very T’s and P’s. (Rapping) Thank you all. Is everybody here? Because if everybody’s here, I’d like to thank you all for coming to the wedding.

It’s more about breath control than being – it’s not a tongue twister. It’s very consciously not a tongue twister. It’s about being able to say it in one continuous breath and getting out of the way and choosing words that do not require any extra air or any extra tongue or jaw work. So it’s actually not about trying to making it hard. It’s about making it easy.

GROSS: So did you learn that intuitively or did Sondheim tell you that that was his intention to stay away from as many H’s as possible and to keep it to things that could easily be said?

MIRANDA: I think I read about that in a conversation he had at some point, but I also knew that intuitively because of the hip-hop artists I liked who rapped fast. You know, they’re not trying to make something that’s hard for them to perform every night. They’re trying to make something that sounds impressive and is a joy to deliver every night. I’m trying to think of, like, a really specific early-’90s example. Queen Latifah – (rapping) Snatch ya stature. Your broken looks more like a fracture. Catch that rapper. Latifah will be back to crush ya.

That’s Queen Latifah in 1992, and it’s fast. There’s Queen Latifah’s “U.N.I.T.Y.” She goes (rapping) there’s plenty of people out there with triggers ready to pull it. Why you trying to jump in front of the bullet, young lady?

No H’s. So you learn intuitively that, like, the writer is trying to make something that flows easily off the tongue.

GROSS: So did the writer of Alexander Hamilton try to avoid H’s in writing the lyrics?

(LAUGHTER)

MIRANDA: Well, you will observe that Hamilton is not in any of the fast rapping that happens onstage, right? George Washington goes, Hamilton and then – he goes (rapping) sir, he knows what to do in a trench, ingenuitive (ph) and fluent in French, I mean.

So we’re not hampering anyone with Hamilton.

GROSS: Well, Lin-Manuel Miranda, it’s just been wonderful to talk with you. I thoroughly enjoyed it. Thank you so very much.

MIRANDA: Likewise. The joy is mine.

GROSS: Lin-Manuel Miranda created the musical “Hamilton” and originated the title role. The London production just opened to rave reviews. His grandmother died yesterday. We send our condolences. Our interview was recorded last January. Today’s broadcast was part of our holiday week series featuring some of our favorite interviews of the year. After we take a short break, film critic David Edelstein will tell us what’s on his 10-best list. This is FRESH AIR.

The Real Hamilton: What’s Not to Love?

Alexander Hamilton’s pro-business and big government ideas wouldn’t make him popular today.

 No libertarian, he believed the federal government could and should play a central role in economic development.
.. For starters, Hamilton rejected Scottish economist Adam Smith’s then-novel doctrine of laissez-faire. He feared that pure free trade would trap the U.S. into remaining an economic colony supplying cotton, tobacco, food, and raw materials to Britain. He wanted the federal government to have the power to tax and spend, giving it real agency.
.. History shows that Hamilton bested his rival Thomas Jefferson, who wanted the nation to be a loose confederation of yeoman farmers. “The 20th century became an American century precisely because America by 1880 was not a gigantic Australia ..
.. “You can even say that he [Hamilton] is the man who had the biggest influence on the way in which capitalism has developed,” argues Cambridge’s Chang, a native of South Korea.
.. Hamilton had some deeply undemocratic ideas. At the Constitutional Convention he recommended that the president serve for life on condition of good behavior, appoint all the governors, and have veto power over state legislation. He wanted something like an American king.