At William Barr Hearings, Mueller Probe in Focus

In response to questions, Mr. Barr said he viewed Mr. Mueller as a fair-minded investigator who would treat the president fairly. “I don’t believe Mr. Mueller would be involved in a witch hunt,” Mr. Barr said, contradicting Mr. Trump’s favorite description of the special counsel’s investigation.

.. Mr. Barr told Ms. Feinstein his memo was “entirely proper.” He was concerned by news accounts of Mr. Mueller’s investigation into whether Mr. Trump obstructed justice, he said, and thought such a theory “would have a chilling effect going forward over time.”

Mr. Barr said he expressed his concerns to Deputy Attorney General Rod Rosenstein over lunch before putting them in writing. “He did not respond and was sphinx-like in his reaction, but I expounded on my concerns.”

.. The nominee also said he had expressed similar concerns to Justice Department officials regarding the prosecution of Sen. Bob Menendez (D., N.J.) on bribery allegations, saying, “I thought the prosecution was based on a fallacious theory.” That case ended in a hung jury.

.. Likely to be of particular concern to Democrats is Mr. Barr’s disclosure Monday night that he had sent the memo to a wider group of Trump lawyers than was previously known, including Jay Sekulow, Marty and Jane Raskin and Pat Cipollone, a former Justice Department colleague who is now White House counsel. Democrats, including Senate Minority Leader Chuck Schumer of New York, have said Mr. Trump should withdraw Mr. Barr’s nomination given his views in the letter.

.. “I distributed it broadly so that other lawyers would have the benefit of my views,” he said.

On the Mueller probe more broadly, Mr. Barr said in prepared remarks: “I will not permit partisan politics, personal interests or any other improper consideration to interfere with this or any other investigation.” He will add: “On my watch, Bob [Mueller] will be allowed to complete his work.”

.. If Mr. Barr is confirmed, it would bring together a forceful advocate of executive power with a president who has shown no problem wielding that power in unconventional ways. Mr. Barr previously served as attorney general under President George H.W. Bush… As a high-ranking Justice Department official in the late 1980s, Mr. Barr advised that a president has the authority to use the military without congressional support, a position that helped underpin the invasion of Panama and later the deployment of troops to Somalia. He urged Mr. Bush to pardon six Reagan administration officials involved in the Iran-Contra matter in 1992; Democrats want to grill him on his reasoning at the time and how he would react to potential pardons of Trump aides who have been convicted in the Russia probe.

In his first stint as attorney general, from 1991 to 1993, Mr. Barr pushed tough-on-crime policies and took a hard-line approach to immigration, which could come into sharper focus as senators ask him about Mr. Trump’s push for a wall along the U.S. southern border.

.. Mr. Barr spent more than 25 years in the corporate world since serving as attorney general, developing a reputation as an aggressive lawyer who forcefully represented his clients. He served as the top lawyer for the telecommunications company that became Verizon Communications Inc., and he later worked on behalf of other large companies in private practice.

Trump’s Darkest Days

Responsible journalists report that Trump White House aides (who are notoriously sieve-like) say the US president feels alone and cornered.

Feeling lonely should not be surprising, as Trump is not one for close friendships. He has proven time and again that for him, loyalty is a one-way street. Virtually no one who works for him can feel secure. Probably no one but his daughter Ivanka is safe from the terminal wrath that eventually pushes so many associates out the door.

.. Trump had dropped hints that he would pardon Manafort, but he was advised – and for once, he listened – that to do so before November’s midterm congressional elections would be catastrophic for the Republicans and therefore him. Manafort apparently calculated that he could neither bet on a pardon later – what if Trump himself was in serious legal danger by then? – nor afford another trial. His plea deal with Mueller strips him of most of his properties and tens of millions of dollars, but he was willing to accept huge financial losses to avoid the possibility of spending the rest of his life in prison.

.. Manafort also wanted an arrangement that would keep his family safe. After all, he would be giving Mueller’s prosecutors the goods on some Russian oligarchs close to President Vladimir Putin – folks who are not particularly gentle toward people who betray them.

.. Kavanaugh was a risky choice all along. Drawn from a list of other highly conservative possible nominees provided to the president by the right-wing Federalist Society, Kavanaugh stood apart for his extraordinary views about presidential power. Kavanaugh has written that he believed that a president cannot be investigated or prosecuted while he is in office.

.. This view that a president is above the law is unique (so far as is known) among serious legal scholars. Its appeal to Trump is obvious. Moreover, Kavanaugh’s views are far to the right on other issues as well

.. Republican leaders were desperate to get Kavanaugh confirmed before the midterms, lest their voters stay home out of disappointment and even anger if he wasn’t confirmed – in which case their worst nightmare, a Democratic takeover of the Senate as well as the House of Representatives, could come true..

.. Bob Woodward’s latest book, Fear, which (like previous books on Trump, but to a greater extent and with more depth) offers a devastating portrait of a dysfunctional White House. In particular, the book – together with an anonymous New York Times op-ed by a senior administration official – showed how far aides would go to keep an incurious, ignorant, and paranoid president from impulsively doing something disastrous.

..

Who Is Brett Kavanaugh?

Contrary to what supporters say, he’s no originalist.

But Judge Kavanaugh hasn’t earned his originalist badge. It’s being fixed to him to mask the fact that as an appeals court judge, he relentlessly pressed forward a Republican agenda favoring business and religious interests.

.. Judge Kavanaugh leaned a bit toward an originalist approach in two opinions, one in 2008, the other in 2011. But when he was asked in 2016 whether he considered himself an originalist, he didn’t answer, and in a 2017 lecture, he expressed caution. “History and tradition, liberty, and judicial restraint and deference to the legislature,” he explained, “compete for primacy of place in different areas of the Supreme Court’s jurisprudence.”

To a pure originalist, this is an incoherent mixing of methodologies. Any ruling that departs from the original meaning should be thrown out. Judge Kavanaugh has called for no such thing.

.. Instead, he has proudly said that he’s a textualist, which means that he gives primacy to the ordinary meanings of the words of a statute, or the Constitution itself. Textualists steer away from other sources of meaning, like legislative history. Conservatives have often touted textualism for its neutral deference to the legislature. Three of the court’s conservative members — Chief Justice John Roberts and Justices Samuel Alito and Neal Gorsuch — lay claim to textualism as a guiding principle.

But textualism doesn’t serve as an overarching theory for conservative jurisprudence. Textualist interpretation can produce liberal as well as conservative interpretations of statutes. And because ambiguous phrasing in laws leaves judges with choices to make, it doesn’t put much of a restraint on judges. As Judge Kavanaugh has said, quoting the liberal-moderate Justice Elena Kagan, “We are all textualists now.” This means that textualism offers neither a clear dividing line from liberals nor the historical gravitas of originalism.

.. This is clear from the conservatives’ expansive interpretation of the First Amendment’s guarantee of free speech, an approach that has no historical support from the time the First Amendment was written. Despite this, in a series of decisions, from Citizens United in 2010, which opened a faucet of campaign donations and spending, to Janus v. AFSCME in June, which diminished the clout of unions by stopping them from collecting dues from all the workers they represent, conservatives have used the First Amendment to strike down laws that regulate corporations, help unions and limit the influence of money on politics.

.. Tellingly, the court has accepted far more cases involving challenges to regulations of conservative speech than previous courts, with a win rate of 69 percent, compared with 21 percent for cases involving liberal speech. Judge Kavanaugh, too, has embraced this business-friendly interpretation of the First Amendment.

.. With five reliable members, the court’s conservative wing will be in a position to accomplish much, and for the most part it will be easier to achieve its goals without originalism.

.. Expect a reappearance, however, when it comes time to reconsider the constitutional right to abortion access established in Roe v. Wade. With that important exception, originalism has largely served its purpose and can be cast away

.. Judge Kavanaugh’s supporters call him an originalist rather than the pro-business Republican he is because of the theory’s claim that it separates law from politics. As the gap between originalism and the greater goals of conservative jurisprudence widens, however, the claim that the Supreme Court stands above the political fray, already damaged, will become harder to sustain.

 

 

Trump Claims Power to Bypass Limits Set by Congress in Defense Bill

In a signing statement that the White House quietly issued after 9 p.m. on Monday — about six hours after Mr. Trump signed the bill in a televised ceremony at Fort Drum in New York — Mr. Trump deemed about 50 of its statutes to be unconstitutional intrusions on his presidential powers, meaning that the executive branch need not enforce or obey them as written.

Among them was a ban on spending military funds on “any activity that recognizes the sovereignty of the Russian Federation over Crimea,” the Ukrainian region annexed by Moscow in 2014 in an incursion considered illegal by the United States. He said he would treat the provision and similar ones as “consistent with the president’s exclusive constitutional authorities as commander in chief and as the sole representative of the nation in foreign affairs.”

.. The statement was the latest example of Mr. Trump’s emerging broad vision of executive power. His personal lawyers, for example, have claimed that his constitutional authority to supervise the Justice Department means that he can lawfully impede the investigation into Russia’s interference in the 2016 election no matter his motive, despite obstruction-of-justice statutes.

.. The American Bar Association in 2006 took the position that presidents should not use signing statements, but should instead veto legislation if it has constitutional defects so that Congress has an opportunity to override that veto if lawmakers disagree. But presidents of both parties, including Barack Obama, have continued to use them, with current and former executive branch lawyers arguing that the focus should be on the credibility of the legal theories that presidents invoke when they make their objections.