Infinite power in all directions

Donald Ayer, who was Deputy Attorney General under George H. W. Bush before William Barr, says it’s been Barr’s lifetime goal to make the powers of the president all but infinite.

[I]n securing his confirmation as attorney general, Barr successfully used his prior service as attorney general in the by-the-book, norm-following administration of George H. W. Bush to present himself as a mature adult dedicated to the rule of law who could be expected to hold the Trump administration to established legal rules. Having known Barr for four decades, including preceding him as deputy attorney general in the Bush administration, I knew him to be a fierce advocate of unchecked presidential power…

And not so much the rule of law, at least not when it’s the president breaking it.

For many decades, Barr has had a vision of the president as possessing nearly unchecked powers. That vision is reflected in many OLC opinions, and in arguments advanced and positions taken since the 1970s. But the most compelling source for present purposes is Barr’s memorandum submitted just a year ago. Notable near its beginning is his statement that he was “in the dark about many facts,” followed immediately and repeatedly by vehement assertions that “Mueller’s obstruction theory is fatally misconceived,” and if accepted “would have grave consequences far beyond the immediate confines of this case and … do lasting damage to the Presidency.”

Because it’s imperative for the presidency to be indistinguishable from a dictatorship.

As this introduction suggested, Barr’s memo rested not on facts, but on a much more sweeping claim that as a matter of law, the obstruction-of-justice statute, 18 U.S.C. Section 1512, cannot possibly apply to any conduct by the president that is arguably at issue. In a five-page section, Barr’s memo advanced arguments based on interpreting the words of the statute. Then in a much longer second section, he got to the meat of the matter. He claimed that, regardless of whether the statute is correctly understood to have been intended to apply to actions by the president to interfere with an investigation of himself—as the Mueller report concluded it was—it would be an unconstitutional infringement on the president’s Article II powers to apply that law to the president.

The vehemence of Barr’s memo is breathtaking and the italics are all his: “Constitutionally, it is wrong to conceive of the President as simply the highest officer within the Executive branch hierarchy. He alone is the Executive branch. As such he is the sole repository of all Executive powers conferred by the Constitution.”

That’s stated as if it were a fact but it’s actually an interpretation – and one that Ayer considers wack.

Thus, “the Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President.” That authority is “necessarily all-encompassing,” and there can be “no limit on the President’s authority to act [even] on matters which concern him or his own conduct.” Because it would infringe upon the total and utterly unchecked discretion that Barr believes Article II confers on the president, “Congress could not make it a crime for the President to exercise supervisory authority over cases in which his own conduct might be at issue.” Indeed, according to Barr, “because the President alone constitutes the Executive branch, the President cannot ‘recuse’ himself.” Thus, in Barr’s view, the only check on gross misconduct by the president is impeachment, and the very idea of an independent or special counsel investigating the president is a constitutional anathema.

So, it’s impeachment or nothing, and if impeachment is impossible because a pack of sleazy party loyalists control the Senate, then too bad, you’re stuck with a criminal committing crimes as president and there’s not a single thing you or anyone can do about it, soz, sucks to be you.

It is not at all surprising that Bill Barr, with this vision of the law in mind, could reach his ultimate conclusion on obstruction in just a few days, or that in subsequent public appearances he has never offered to explain his conclusions by referencing what Trump actually did. The facts simply don’t matter under Barr’s understanding of the Constitution, in which “the President alone is the Executive branch … the sole repository of all Executive powers conferred by the Constitution,” and Congress may not restrict his exercise of discretion in using those powers. Why worry about facts if, as Trump has claimed repeatedly, the president has unlimited power to direct or terminate any investigation, including of himself?

Trump and his endless assertions of power offer countless opportunities to pick and choose those executive-power claims with the best chance to succeed in court. Thus, in the Trump administration, Barr may have found the ideal setting in which to pursue his life’s work of creating an all-powerful president and frustrating the Founders’ vision of a government of checks and balances. His strange pursuit of an investigation of the investigators—on the supposition that the FBI may have been improperly “spying” on the Trump campaign when they investigated Trump associates who were found to have met with various Russians—may be the opening public chapter in that endeavor.

We’re so screwed.

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