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, Wrecker of Reputations
On Attorney General William Barr’s testimony and the coming constitutional crisis.
In the first year of the Trump Presidency, White House advisers often promised reporters that this would be the week when they would unveil Trump’s plans for a massive investment in American infrastructure. On the campaign trail, Donald Trump had vowed to spend a trillion dollars rebuilding roads, bridges, and airports. He said that he would work with Democrats to do it. For a time, it seemed to be the only bipartisan project that might actually go somewhere. But, of course, Infrastructure Week never happened. There was always some distraction, some P.R. disaster that overwhelmed it—a chief of staff to be fired, an errant tweet upending foreign policy. Infrastructure Week lived on as an Internet meme, a Twitter hashtag, a joke; it became shorthand for the Administration’s inability to stay on message or organize itself to promote a legislative agenda it claimed to support.
Trump never fully gave up on the infrastructure idea, though, and this week he resurrected it in a rare meeting with congressional Democratic leaders, who emerged from the White House on Tuesday morning, smiling and apparently excited. The President, they explained, had decided to double the price tag of his proposal, from a trillion to two trillion dollars, because it sounded more impressive. House Speaker Nancy Pelosi, to whom the President reportedly offered Tic Tacs at the meeting in a friendly gesture, praised his vision for a “big and bold” plan. The meeting, Senator Chuck Schumer added, had been a “very, very good start.”
But it was all just a form of Washington performance art. There are no Republican votes for such an expensive package, as the Democrats well knew, and there is no way that the President’s allies on Capitol Hill, nor his own penny-pinching White House chief of staff, would agree to such a budget-busting deal. Trump’s “extreme and aspirational” idea, as Senator Kevin Cramer, of North Dakota, put it, had Republicans “rolling their eyes,” Politico reported. The ranking member of the House committee that would have to approve any measure had offered a simple answer to the question of whether Trump’s idea could ever be passed. “No,” he said. It would not be Infrastructure Week, or even Infrastructure Day. The new era of bipartisan dealmaking was over before it began.
For his part, Barr, once again, acted more as the President’s defense lawyer than as his Attorney General. Taking a maximalist position on Presidential power, Barr argued that Trump would be well within his rights to shut down any investigation of himself if he believed it to be unfair. Surely, that statement will go down as one of the most extraordinary claims of executive authority since Richard Nixon said that “when the President does it, that means it’s not illegal.” Throughout his appearance, Barr continued to assert that Trump had been cleared of all wrongdoing by the Mueller investigation, while admitting, under questioning by Senator Kamala Harris, that he and his deputy had not actually looked at the underlying evidence of Presidential obstruction assembled by Mueller before determining that it was not sufficient to warrant charges. Barr also said that Trump directing his then White House counsel to fire the special counsel—a key incident in the Mueller report—was not a big deal because Trump was actually ordering that Mueller be replaced, which, Barr contended, is not the same thing as ordering him fired. His client, not surprisingly, was pleased. “A source familiar with Trump’s thinking said the President thought Barr was great and did an excellent job,” Axios reported.
Bill Barr on War Powers: Insights From his 2001 Oral History Interview
In the spring of 2001, Bill Barr, the former attorney general under George H.W. Bush who has now been tapped to resume that role under Donald Trump, sat for an oral history interview sponsored by the University of Virginia’s Miller Center. The transcript is fascinating reading on many issues, such as Barr’s explanation of his reluctant support for now-Justice Sonia Sotomayor for her original district court appointment, his argument for “massive retaliation against Libyan military intelligence targets” after the bombing of Pan Am Flight 103 was attributed to the Libyans and his belief that the “issue of the role of the Department of Justice versus the national security apparatus in terrorist situations … hasn’t been thought through.” But here I’d like to focus on his account of the clash between Congress and the president over war powers.
Barr’s narrative picks up at the time when President H.W. Bush already had deployed half a million troops to Saudi Arabia (Operation Desert Shield), but prior to the invasion to evict Iraq from occupied Kuwait (Operation Desert Storm). Barr had been head of the Office of Legal Counsel previously, and now was the deputy attorney general. With Attorney General Dick Thornburgh unavailable at a particular moment in time and given Barr’s extensive experience with national security legal issues, Barr explained, he naturally became a key participant in discussions regarding whether the president should seek from Congress a formal authorization (or at least some form of endorsement) to use force against Iraq:
We knew the issue would eventually come, and the president would need some advice on the parameters of his power. First, I believed that the president did not require any authorization from Congress, and I believed that the president had constitutional authority to launch an attack against the Iraqis. … He didn’t put 500,000 troops over there for them to sit there, and there was no doubt in my mind that he was going to go on the offensive unless the Iraqis withdrew unilaterally. So I figured at some point I’d be asked my opinion on this. Then, before I knew it, I got this call that there was going to be a meeting over in the Cabinet Room to discuss the legal issues surrounding the operations in the Gulf.
…[W]hen I was leaving my office, Senator [William S.] Cohen was on the floor, a Republican purportedly, giving this speech saying that if any lawyer ever advised the president that he had the authority—because this was really being debated at the time, and there were op-ed pieces and so forth—if any lawyer told the president that he had authority to unilaterally attack the Iraqis, then that lawyer would be impeached. I was putting on my jacket listening to this going over to the meeting.
…The president 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 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.
At this point in the narrative, things are relatively simple. Barr had made clear his view that the president’s inherent authority under Article II included the authority to initiate a large-scale, combined-arms operation involving massive ground forces, without need of congressional authorization in the form of an authorization for the use of military force or otherwise. But he also went on to express a back-up theory—one that he labeled a “bootstrap argument”—in the event that this first theory did not persuade. Here is Barr’s account of the bootstrap argument for presidential war powers:
…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 U.N. 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, [redacted].
Let’s unpack that a bit. The argument proceeds in two steps. First, does the president have authority to deploy armed forces in non-combat capacities? Barr argued that Bush certainly had authority to go that far, and Barr reinforced that conclusion as to this particular instance by pointing out that there was little doubt Congress approved Operation Desert Shield. But this left open the question of whether it somehow followed that Bush also could order that deployed force, without congressional authorization, to initiate hostilities with Iraq. That brings us to the secondstep: By citing the risk that forces deployed in Saudi Arabia might be attacked preemptively by Iraq (by chemical or biological weapons no less), Barr concluded that Bush had available the option of initiating hostilities in the form of anticipatory or preemptive self-defense. Thus the bootstrap metaphor: The authority to attack the Iraqi military could be derived from the need to preemptively defend the deployed forces.
Notably, Barr paused at this point in his advice to the president in order to encourage him to obtain congressional support if possible, recognizing that this would put the president in the strongest position possible. But he also recognized that congressional debate on this subject would introduce the shadow of Justice Robert Jackson’s “tripartite framework” from Youngstown (Steel Seizure):
I said, However, Mr. President, even though you have the power to do this unilaterally, without any consultation with Congress or what have you, you certainly would be in a better position, the strongest possible position, if Congress did pass a resolution. It would not be the law. It wouldn’t be a statute authorizing you to do it, but a resolution supporting what you did.
The reason I say that is because on the Hill at that point they were actually talking about passing a resolution that said the opposite, that he could not use force unless he got their approval. There were some in the administration who were saying, Just let them do it, screw them, ignore them, and let them pass whatever they want.
I said, I think it’s better to get up there and engage, to get up there and see if we can head off that kind of resolution and, in fact, get a resolution in support of it.
President Bush, wisely, anticipated the potential Youngstown problem that might follow:
He said, Well, suppose they pass a resolution saying I cannot do it. What impact does that have?
Barr’s response was nuanced: “I said, It’s irrelevant. It’s not a statute. It’s just an expression of opinion. They can’t change the Constitution by expressing their opinion on the matter. I would say you could still do it.…”
This gets to a very important question, one that senators should explore during the confirmation hearings: Does Barr believe not only that the president has inherent authority to initiate large-scale hostilities (whether directly as in his primary argument above, or via a boostrapped-defense claim as in his fall-back argument), but also that the president can do so even when Congress purports to direct otherwise?
Critically, the answer Barr gave to Bush does not compel the conclusion that Barr believes the commander-in-chief can override a statute. He was careful to frame his answer to President Bush in terms of a hypothetical in which Congress is considering a mere concurrent resolution (that is, something passed by both houses but not presented to the president for signature and not of statutory nature). Barr seems to have been saying that a negative concurring resolution can indeed be overridden—that is, that the president in that type of lowest-ebb scenario would yet prevail on the war powers question. But it does not follow that Barr would take the same view if the congressional opposition took the form of an actual statute (including a proper joint resolution), particularly one leveraging the spending power. Indeed, it is quite possible Barr (like John Yoo) would accept the power of Congress to constrain the commander-in-chief at least via the spending power, so long as the congressional action managed to rise to the statutory level.
In the end, of course, these questions were moot as to what became Operation Desert Storm:
And [Dick] Cheney said, You’re giving him political advice, not legal advice. I said, No, I’m giving him both political and legal advice. They’re really sort of together when you get to this level. Then there was a debate as to whether he should get up on the Hill and push. I was saying he should, and Boyden Gray was saying he should. There were others who were opposed. Eventually he made the decision after that meeting that he would. The White House went full-bore on that vote and got the vote turned around, and then ultimately won the vote. That was an interesting experience. I enjoyed that.
I’ll close by noting what should be obvious from those who have followed these arguments over the past decade. The most common war powers dispute in recent years has been not the question of unilateral authority to engage in large-scale ground operations, but rather unilateral authority to engage in airstrike-focused operations that rely on allies for the ground component—giving rise to the notion, embodied by Obama’s 2011 Libya campaign, that the “war powers” debate is not actually even implicated in the first place in such cases. I think it’s safe to assume that Bill Barr would accept that reading of the president’s authority as well.
Defending Rights & Dissent Raises Troubling Issues with William Barr’s Views on War Powers
As the letter explains, Barr’s views on the first Gulf War are particularly troubling. After George H.W. Bush sent half a million US soldiers to Saudi Arabia, there was significant national debate about whether Bush would need Congressional authorization to attack Iraq. Many within the Bush administration believed a resolution to authorize military force would fail in Congress and thus Bush should attack without seeking one.
Barr, then Deputy Attorney General, was a leading advocate for the view that Bush could launch a large scale, military offensive against Iraq without Congressional approval. While Barr claimed an inherent Article II authority made such a move legal, he also developed a backup “bootstrap” theory. This theory cynically exploited concerns about Iraqi chemical and biological weapons to justify a pre-emptive strike against Iraq. Ultimately, Barr advised Bush to seek a Congressional resolution, but he stated that such a resolution would not be law.
Congress has become increasingly concerned with the President’s blank check for war. There have been efforts to repeal the overly abused post-9/11 AUMF. And the Senate recently involved the War Powers Act as an attempt to end illegal US war in Yemen. As this was in spite of Pentagon claims that Congress lacked the legal authority to do so, it seems likely that the President and Congress may soon butt heads over war powers. This makes Barr’s views on war powers especially pertinent.