Finally, adopting a hysterical tone, Hemel and Posner write:
Remember when President Trump demanded “loyalty” from [former FBI director James] Comey? If Mr. Barr is confirmed as attorney general, it looks as though the president will get what he wanted. “He alone is the Executive branch,” Mr. Barr wrote of the president. The attorney general and the Justice Department lawyers “who exercise prosecutorial discretion on his behalf” are “merely ‘his hand.’” These bizarre statements are not those of a lawyer but of a courtier.
Actually, far from “bizarre statements,” Barr’s assertions reflect the views of the late, great Justice Antonin Scalia in his much-admired dissent in Morrison v. Olson (1988). The Constitution says, “The executive Power shall be vested in a President of the United States.” As Justice Scalia memorably explained, “this does not mean some of the executive power, but all of the executive power.” Such estimable scholars as Hemel and Posner must know that Barr — far from sending a signal about “loyalty,” which former director Comey alleges President Trump demanded of him — was merely articulating the “unitary executive” theory. That theory, rooted in constitutional law, holds that Article II vests all executive power in a single official, the president; therefore, subordinates appointed to wield executive power, including government lawyers exercising prosecutorial discretion, do so as delegates of the chief executive. That, indeed, is why all executive officers serve at the pleasure of the president, who does not need a reason to dismiss them.
The Barr Memo Is a Commendable Piece of Lawyering
It is exactly what we need and should want in an attorney general of the United States: the ability to reason through complex legal questions in a rigorously academic way. Not to bloviate from the cheap seats, but to think these issues through the way a properly functioning Justice Department does: considering them against jurisprudence, statutes, rules, regulations, and Office of Legal Counsel (OLC) opinions, with a healthy respect for facts that we do not know or about which we could be wrong — facts that could alter the analysis.
.. Barr was not only attorney general in the Bush 41 administration; he also served in the weighty positions that Rosenstein and Engel now occupy... Barr wrote not as an advocate representing someone in the investigation, but as a former high-ranking government official concerned about the institutions of the executive branch, particularly the Justice Department. Special Counsel Mueller’s apparent obstruction theory may have been conceived with the specific facts of President Trump’s situation in mind — Trump’s expression of hope that the FBI would drop any investigation of Michael Flynn, his decision to fire FBI director James Comey. But while a prosecutor may believe his application of a legal principle is narrow, once that application becomes a precedent, only the limits of logic curtail its further, potentially paralyzing extension... As Barr elaborates, if a president may be prosecuted for obstruction based on carrying out the executive’s constitutional prerogatives — exercises of prosecutorial discretion, giving direction to the course of an investigation, making personnel and management decisions — then every other official in the Justice Department is similarly vulnerable. The apprehension that proper and necessary acts could be construed as improperly motivated, and therefore as actionable obstruction, would profoundly undermine the administration of justice... note that Barr took pains to caveat that many facts of Mueller’s investigation are unknown to him and the rest of the public. Barr’s legal and policy views were based on publicly reported information; if it turns out that Mueller is in possession of new facts that would alter Barr’s assessment, then his assessment would be altered accordingly... Indeed, Democrats and Trump critics should be encouraged by Barr’s analysis. Put aside that they should be impressed by its high quality. Barr is very far from saying that a president may never be prosecuted for obstruction. Invoking the Nixon and Clinton precedents as support, he asserts thatif a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction
.. Barr’s argument is narrow. Mueller appears to be relying on Section 1512 of the federal penal code, an obstruction statute that contains a “catch-all” provision (subsection (c)(2)). This provision targets anyone who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” (Emphasis in Barr’s memo, not in the statute.) Barr’s point is that, to avoid constitutional problems (e.g., vagueness, infringement on Article II authorities), “otherwise” must be read to refer to the types of innately obstructive acts that precede it (in subsection (c)(1)) — “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding.”
Trump Is Mulling Candidates Who Could Succeed Jeff Sessions
Potential candidates for attorney general include Alex Azar, Steven Bradbury and Bill Barr
Mr. Sessions isn’t currently planning to leave, but privately has said that he anticipates he may be asked to resign, according to people familiar with the matter. The attorney general, who was the first senator to endorse Mr. Trump during the presidential campaign, has told people the request may come on the president’s Twitter feed.
“This is actually the dumbest thing I’ve been asked to comment on in a while,” said Justice Department spokeswoman Sarah Flores.
..Replacing Mr. Sessions would present legal and political quandaries for the president.
.. Mr. Trump must find a successor who could win Senate confirmation, a job that senators say is harder given the president’s public suggestions that he wants a political ally as attorney general.
.. Many GOP senators are advocating for Sen. Lindsey Graham (R., S.C.) to succeed Mr. Sessions, especially after Mr. Graham’s vocal defense last week of now Supreme Court Justice Brett Kavanaugh.
.. “As I think about people who could be confirmed to that position in the Senate, Lindsey Graham is at the top of my list,” said John Cornyn of Texas, the Senate’s second-ranking Republican. “In fact, I can’t think of anybody else right now who could get confirmed.”
.. Mr. Graham called Mr. Trump a “race-baiting, xenophobic religious bigot.” Mr. Trump said Mr. Graham was a “lightweight” and an “idiot,” and gave out Mr. Graham’s mobile number during a campaign rally... Another purported candidate, Sessions chief of staff Matthew Whitaker, has allies in the White House but also detractors, according to people familiar with the matter. As a commentator on CNN, Mr. Whitaker expressed skepticism about the special counsel probe and urged limits on its scope, a position likely to raise objections from Democrats and some Republicans... That leaves, for now at least, the five individuals currently under discussion at the White House. Three of them—Messrs. Azar, Bradbury and Sullivan—are serving in Senate-confirmed positions. They would have to be reconfirmed to serve as attorney general, but may have an advantage from having already won Senate approval.
The professors and the Times may not like the unitary executive — most progressives do not, at least when the White House is not occupied by a Democrat. But it is beneath Hemel and Posner to pretend that the articulation of a venerable legal theory, advanced by a lawyer who is widely acclaimed to be exceptional and with whom the president was not acquainted until recently, is the flattery of a “courtier.”