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.

Mueller Calls Out William Barr’s LIES

The Justice Department is admitting that Robert Mueller is frustrated with William Barr. Cenk Uygur, Ramesh Srinivasan, and Brooke Thomas, hosts of The Young Turks, break it down. MORE TYT: https://go.tyt.com/7ks

“A Justice Department spokeswoman said Tuesday that special counsel Robert Mueller expressed “frustration” to Attorney General William Barr in late March over the lack of context in the attorney general’s four-page memo describing his investigation’s findings. Mueller “expressed frustration over the lack of context and the resulting media coverage” of his obstruction inquiry in a phone call following the release of Barr’s four-page letter, Justice Department spokeswoman Kerri Kupec said in a statement to The Hill. Kupec said Barr called Mueller after receiving a letter in which, according to The Washington Post, the special counsel wrote that Barr’s March 24 memo did not “capture the context, nature, and substance” of his findings.”

Lawmakers to Investigate Report That Trump Directed Cohen to Lie to Congress

House Democrats say they will look into whether President Trump asked former lawyer Michael Cohen to commit perjury

WASHINGTON—Lawmakers said they would investigate a report that President Trump directed his former lawyer Michael Cohen to lie to Congress about the president’s involvement in a real-estate deal with Russia during the 2016 campaign.

.. “The allegation that the President of the United States may have suborned perjury before our committee in an effort to curtail the investigation and cover up his business dealings with Russia is among the most serious to date,” he tweeted.

.. Mr. Trump in a tweet Friday morning suggested Mr. Cohen was “lying to reduce his jail time,” but didn’t specify what he believed his former lawyer was lying about. Mr. Cohen was already sentenced last month to three years in prison.

.. Responding to the reported allegation, Rudy Giuliani, a lawyer for Mr. Trump, questioned Mr. Cohen’s credibility. “Haven’t checked it out but if you believe Cohen I can get you a good all-cash deal on the Brooklyn Bridge,” Mr. Giuliani said via text message.

.. Other Democratic members of the panel called for severe consequences if Mr. Trump is found to have directed his lawyer to lie to Congress. “If the @BuzzFeed story is true, President Trump must resign or be impeached,” Rep. Joaquin Castro (D., Texas) said on Twitter.

Rep. Ted Lieu (D., Calif.), a member of the House Judiciary Committee, said in a tweet that the report “establishes a clear case of obstruction of justice,” and said: “It is time for the House Judiciary Committee to start holding hearings to establish a record of whether @POTUS committed high crimes.”

.. Buzzfeed News reported late Thursday, citing two law-enforcement officials, that Mr. Cohen had told special counsel Robert Mueller that the president had directed him to tell Congress in his 2017 testimony that negotiations for a Trump Tower in Moscow had ended in January 2016, when in fact they had continued through June of that year—a month after Mr. Trump effectively won the GOP nomination. Buzzfeed also reported that Mr. Mueller had evidence corroborating Mr. Trump’s direction of Mr. Cohen, including interviews and documents.

.. Suborning perjury is a crime that constitutes obstruction of justice. William Barr, Mr. Trump’s attorney general nominee, said in his confirmation hearing earlier this week that “a president persuading a person to commit perjury” was obstruction.

.. “Listen, if Mueller does have multiple sources confirming Trump directed Cohen to lie to Congress, then we need to know this ASAP. Mueller shouldn’t end his inquiry, but it’s about time for him to show Congress his cards before it’s too late for us to act,” Rep. Chris Murphy (D., Conn.) tweeted.

 

National Review Comments: Pro and Anti-Trump

One wonders why a successful business or enterprise would have a reason to hire a “fixer.” You could poll the executives of the largest US corporations and companies and not find one fixer that needed to be retained do administer company business. The smart business people would subcontract the messy stuff (Facebook paying to have false dirt spread about George Soros comes to mind). For small endeavors, only those who intend to do bad things or cover them up, employ a Fixer. Criminal organizations for instance have them on the payroll. Even Mr McCarthy analogizes using figures in the Godfather. These are not good people. Where there is smoke, there may not always be fire. But where there is a criminal organization, there are always criminals.

.. We have just scratched the surface when it comes to all the “fixes” that Cohen provided for the president. We know about payoffs to porn stars.We know about trips to Russia during the campaign to makes deals for a Trump Tower near the Kremlin (with a $50 million penthouse for Putin to seal the deal). Soon, when the Trump tax returns (“So complicated”) are requested by the House Tax Committee, the story will get even more sorted.

Andrew McCarthy is right about one thing. Mueller is preparing a report. But he has also handed off part of that report to the Southern District of New York. There, they can begin a criminal case; a case that Trump can’t use his Get-Out-Of-Jail-Free card to keep his subordinates quiet. This report by Mueller is just the roadmap, one where others will soon follow up.
.. mtorillion:
.. The Clintons had, and perhaps still have, the bulk of the FBI and Justice Department running and blocking for them. That and the media support gave it an air of “officialdom” the Trump team does not have. The Trump team was all private people, not government fixers and perhaps. In other words, the core of the Deep State. 

.. Trump was elected despite having no friends among the established major figures of either party; he was nominated and elected despite the disdain of many of the elite information organs of the Right. He has far fewer natural vocal allies in conservative circles than any Republican president. It ought make serious conservatives take a second look at their virtuous opposition to him now that it is clear that many of the powers of the State were set in motion against his campaign even before his election and these officials—and the Left—have been tireless, since before his inauguration, in assaulting the legitimacy of his presidency.
Because he campaigned without Republican elites in his inner circle—most of whom would have nothing to do with him—and because he to this day has few strong allies among the Republican establishment, those who have been working most assiduously to destroy this presidency have understood from the outset that without having a firm foundation of support in DC itself, Trump is at special risk.

.. Certain writers at NRO and certain Commenters here are among the far too many conservatives willing to sacrifice this presidency because they despise the man whom people had the temerity to elect. They are determined to separate the rectitude of their judgment about political matters from that of the hoi polloi: the Mueller investigation is, for them, a necessary cleansing agent. Thus they latch onto a vague unsettling that arises from the sordid iniquities of the president, permitting them to set aside elementary constitutional concerns about placing a presidential administration from its inception under an investigative cloud without just cause.