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.
Kirstjen Nielsen is the latest one out of the president’s spiraling cabinet who expressed his cruelty but wouldn’t go as far as he wanted.
There’s no reason to mourn Kirstjen Nielsen’s departure from the Department of Homeland Security. She was an immigration hard-liner working aggressively to carry out President Trump’s restrictionist agenda. She spearheaded efforts to crack down on migrants and asylum seekers. She requested military assistance at the border. She limited the number of people who can legally present for asylum at ports of entry. And she vastly increased the number of immigrants in detention.
She also carried out the president’s “zero tolerance” policy, resulting in the separation of thousands of families at our border with Mexico. Many parents are still searching for their children.
But there were limits to Nielsen’s embrace of Trump’s immigration policies. She pushed back on his demands to break the law to stop migrants from entering the country, according to The Times, and repeatedly reminded the president of “the limitations imposed on her department by federal laws, court settlements and international obligations.”
In almost any other administration, this would be unremarkable. It simply means Nielsen took her job and its legal obligations seriously — what we would expect from any civil servant. But Trump is unusual among modern presidents for his routine elevation of people who lack that basic sense of public ethics. If regular pressure to break the law was part of Nielsen’s decision to leave the administration, then her departure illustrates how any belief in the public good, no matter how slight, is incompatible with working for this president, even if you share his views.
This was evident from previous resignations and firings. Rex Tillerson, Trump’s first secretary of state, seemed to share the president’s skepticism of the department, carrying out an agenda meant to shrink its influence. But when Trump wanted to break the law — which, Tillerson said in an interview after leaving the administration, was “often” — Tillerson would push back, unwilling to completely subordinate himself to the president’s will. “I would have to say to him, ‘Mr. President, I understand what you want to do, but you can’t do it that way. It violates the law.’”
The president’s first attorney general, Jeff Sessions, faced similar pressures after he recused himself from any investigations related to the prospect of Russian interference with the 2016 presidential election. Sessions took that step after The Washington Post revealed his meetings with the Russian ambassador, Sergey Kislyak, during the campaign — the kind of contact he had denied during his confirmation hearing before the Senate Judiciary Committee.
Trump was furious, which grew into rage after the deputy attorney general, Rod Rosenstein, appointed Robert Mueller special counsel. Trump reportedly berated Sessions in the Oval Office — which the attorney general called his “most humiliating experience in decades of public life” — and complained that the recusal was “unfair.”
Trump wanted Sessions to derail the Russia investigation and protect him from scrutiny, essentially making himself above the law. And he spent much of 2018 pressuring the attorney general to do just that, either attacking him in public or cajoling him in private. Sessions, who shared Trump’s politics but not his complete contempt for the rule of law, wouldn’t budge.
The overall pattern is clear. Trump wants to act with impunity, breaking the law if he needs or even just wants to. His appointees, who share his goals but not his methods, resist. He scolds and attacks them until they resign, replacing them with loyalists who may actually bend to his will.
Rex Tillerson was replaced by Mike Pompeo, then serving as director of the C.I.A. Unlike Tillerson, who attempted to contain Trump’s worst instincts, Pompeo has been willing to say or do nearly anything to stay in Trump’s favor. It’s why he would echo the president’s widely criticized flattery of Kim Jong-un and the North Korean government.
Trump says that Kevin McAleenan, until now the commissioner of Customs and Border Protection, will take over for Nielsen as acting secretary of Homeland Security. Like Nielsen, McAleenan backs the president’s harsh border policies. He defended border patrol agents after they used tear gas on hundreds of migrants, including women and children, who tried to enter the United States near Tijuana, Mexico. Some attorneys say it’s unclear if Trump can elevate McAleenan, since the laws regarding succession point to under secretary for management Claire Grady as next-in-line as acting director.
In 1988, senior members of Reagan’s administration, including Lt. Col. Oliver North, were charged with conspiracy to defraud the United States over their alleged roles in illegally selling arms to Iran and passing the proceeds to rebels in Nicaragua.
The affair was investigated by Congress and independent counsel Lawrence Walsh. By the time it was over, 14 people were criminally charged and 11 were convicted — although all 11 either had their convictions overturned or received pardons from Reagan’s successor, George H. W. Bush.
Walsh later complained bitterly that the Reagan and Bush administrations stymied his investigation, including through those pardons, which were pushed hard by Bush’s then-attorney general, William Barr. Barr later recalled: “I favored the broadest pardon authority.” Perhaps not coincidentally, Barr has now been called back to the DOJ by Trump to oversee the final stages of the Mueller investigation.
.. Renato Mariotti, a former prosecutor and close Mueller-watcher, argues that the special prosecutor is unlikely to roll out a grand conspiracy — for the simple reason that it would be extremely difficult to prove beyond a reasonable doubt.After all, even behavior that appears to be a clumsy attempt at coordination might fall short of serving as evidence of conspiracy: Recall when Trump famously asked Russia to hack Hillary’s emails in the middle of the campaign.By making that call during a press conference, Trump actually made it harder to prove in court that he was somehow intentionally conspiring with Russians in the hacking of her computer, which took place later that same day.“I think most prosecutors would be reluctant to charge that, because he could say it was said in jest,” said McQuade.
— The National Enquirer kept a safe containing damaging documents on hush-money payments and other stories that it killed on Trump’s behalf. The AP’s Jeff Horwitz reports: “Several people familiar with the National Enquirer’s parent company … said the safe was a great source of power for [Pecker]. The Trump records were stored alongside similar documents pertaining to other celebrities’ catch-and-kill deals … By keeping celebrities’ embarrassing secrets, the company was able to ingratiate itself with them and ask for favors in return. But after [Karen McDougal’s catch-and-kill deal was revealed], those assets became a liability. … Fearful that the documents might be used against American Media, Pecker and [Howard] removed them from the safe in the weeks before Trump’s inauguration … It was unclear whether the documents were destroyed or simply were moved to a location known to fewer people.”
.. The Enquirer’s efforts to kill negative Trump stories extended way beyond the 2016 campaign: “Former Enquirer employees who spoke to the AP said that negative stories about Trump were dead on arrival dating back more than a decade when he starred on NBC’s reality show ‘The Apprentice.’ In 2010, at Cohen’s urging, the National Enquirer began promoting a potential Trump presidential candidacy, referring readers to a pro-Trump website Cohen helped create. With Cohen’s involvement, the publication began questioning [Obama’s] birthplace and American citizenship in print.”
.. — The Manhattan district attorney’s office is also weighing possible criminal charges against the Trump Organization and two of its senior officials. The New York Times’s William K. Rashbaum reports: “A state investigation would center on how the company accounted for its reimbursement to Mr. Cohen for the $130,000 he paid to [Stormy Daniels] … [Two] officials stressed that the office’s review of the matter is in its earliest stages and prosecutors have not yet made a decision on whether to proceed. State charges against the company or its executives could be significant because Mr. Trump has talked about pardoning some of his current or former aides who have faced federal charges. As president, he has no power to pardon people and corporate entities convicted of state crimes.”
.. “Trump’s lawyers counseled the president against the idea of pardoning anyone linked to the investigation … saying Trump should at least wait until [Mueller] has concluded his probe.
.. Asked about a pardon, one senior White House official said: ‘What does it accomplish? You pardon him, it doesn’t get rid of the Mueller probe, it causes you more headaches, he still has another trial, you have more Republicans coming after you.’”
.. “Trump’s consideration of pardons, while he praises associates who don’t cooperate with investigations and help those who praise him, also could have a chilling effect, law enforcement officials said,”
.. ‘The president has not a whit of respect for institutions, whether it’s the DOJ or the Fed or the FBI,’ said one former senior administration official. ‘If you are a threat to him, he is going to try to kill you.’
.. Two powerful members of the Senate Judiciary Committee who have been shielding Sessions gave air cover for Trump to fire him after Fox aired the interview. This is significant because a new AG who is not recused from the investigation could oversee Mueller’s work and rein in his probe.
.. — Sen. Lindsey Graham (R-S.C.), who recently golfed with Trump, said it’s “very likely” that the president will oust Sessions but urged him to wait until after the midterms to do so. “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham said. “Clearly, Attorney General Sessions doesn’t have the confidence of the president.” (Graham sung a different tune last July. “If Jeff Sessions is fired,” he said then, “there will be holy hell to pay.”)
.. — Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) also shifted his position and announced he will now be able to find time to hold a confirmation hearing for a new attorney general this fall after the Supreme Court vacancy is filled. “Grassley said he was not advocating for a change at the Justice Department but simply responding to questions about timing,” Devlin Barrett, John Wagner and Seung Min Kim report. “Asked whether he still has confidence in Sessions, Grassley said: ‘Let’s put it this way, he’s a good friend.’
.. “Part of the disenchantment stems from a growing rift between Grassley and Sessions over Grassley’s legislation to change criminal justice policy. Sessions, whose views on law enforcement are shaped largely by 1980s-era mandatory-minimum sentences and harsh penalties for drug dealers, came out against the measure earlier this year, saying it ‘risks putting the very worst criminals back into our communities.’ Grassley has been willing to work with Democrats on legislation that would reduce prison sentences for some nonviolent drug offenders. He was furious that Sessions opposed his bill, one of his biggest legislative priorities… ‘It’s Grassley’s bill, and when the attorney general said he wouldn’t support it, Grassley said that was disloyal,’ said a person close to Sessions. ‘But … the attorney general isn’t going to be blackmailed.’”