Why Barr Is Hell-Bent On Emboldening An Authoritarian Presidency

Attorney General William Barr and President Donald Trump (DOJ/AP)

Article Updated September 17, 2020

With the Justice Department’s request to drop former National Security Adviser Michael Flynn’s case, reduction of Roger Stone’s sentencing recommendation, their effort to oust SDNY US Attorney Geoffrey Berman, and the reported suggestion to charge protestors with sedition it’s important to examine the ideologies that motivate Attorney General William Barr to act as President Trump’s authoritarian fixer.

The modern conservative theory of the unitary executive is corrupting our system of government. It’s the theory that Article II of the Constitution renders the President an all-powerful figure. The theory can be summed up in President Richard Nixon’s infamous words: “Well, when the president does it, that means that it is not illegal.” Or in President Trump’s more precise words, “Then I have an Article 2, where I have the right to do whatever I want as president.” This is a notion the Trump administration has embraced in the aftermath of President Trump’s unprecedented obstruction of the Russia probe, his tactic of stonewalling Congress, and his impeachment defense.

As William Barr indicated in his 19-page memo attacking former Special Counsel Robert Mueller’s obstruction investigation, he thoroughly believes in the unitary executive theory. In his 4-page summary of the Mueller report, in which he lied about Mueller’s findings and attempted to exonerate President Trump, Barr made clear that he believes a President is incapable of obstructing justice. In Barr’s Senate Judiciary hearing last Summer, the Attorney General said that the President has the power to curtail any investigation if he feels he is being falsely accused.

The House Judiciary Committee previously voted to hold Barr in contempt of Congress for refusing to comply with a congressional subpoena. We saw this same tactic of stonewalling in response to the House impeachment inquiry. Even President George W. Bush’s former Deputy Assistant Attorney General John Yoo, who is a proponent of the unitary executive, believes that the Trump Administration has gone too far by refusing to comply with all subpoenas. Barr’s undemocratic belief in absolute executive authority has been apparent throughout his career.

In 1989, then-Assistant Attorney General William Barr in the Office of Legal Counsel wrote a memo entitled “Common Legislative Encroachments On Executive Branch Authority.” In the memo, Barr embodies the unitary executive theory by claiming restrictions on the President’s “removal power,” legislative vetoes, and “attempts to gain access to sensitive Executive Branch information” are legislative encroachments. In 1992, then-Attorney General William Barr worked with President George H.W. Bush on the Iran-Contra pardons which depicted the investigation as partisan.

As you can see, the use of the unitary executive theory to justify an expansive view of presidential power is nothing new, in fact, it’s a view held in many conservative legal circles today. The problem is, this new version of the unitary executive perverts the original vision of Alexander Hamilton, who pioneered the theory. Hamilton first broached the idea of the unitary executive in the Federalist Papers. The idea was for all executive authority to lie with the President rather than delegating decision-making power throughout different deputies.

As Professor Bradley Hays wrote in The Washington Post, Hamilton actually intended the unitary executive to increase accountability by centralizing the power of the executive. Hays also notes that Hamilton explicitly states that the unitary executive does not place the President above the law:

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.

Modern conservative advocates of the unitary executive theory appear to leap right over Federalist 65 and have taken a Nixonian view of presidential power – one that places the president above the law entirely. President Trump’s impeachment lawyers made this same argument during the impeachment trial, with Alan Dershowitz all but declaring Trump a king.

President Trump has already been named as an unindicted co-conspirator in the Southern District of New York’s conviction of Michael Cohen’s campaign finance felonies. Robert Mueller outlined 10 areas of obstruction of justice on the part of President Trump and left it to Congress to decide his fate because he was restricted by the OLC memos stating a sitting president cannot be indicted. Over 1,000 former federal prosecutors have signed a letter asserting that President Trump would be indicted for obstruction of justice if it weren’t for those OLC memos.

President Trump has been impeached for abuse of power and obstruction of Congress for his Ukraine extortion plot. Senate Republicans acknowledged he was guilty of what he was accused of but went on to acquit him anyway, putting a rubber stamp on authoritarianism.

In an interview with CBS in June, Barr continued to defend his attempt to clear the President of obstruction of justice and discussed his plans to investigate the very same people President Trump has falsely accused of treason. Barr went on to launch a probe of the Mueller probe. Barr has confirmed that he is willing to do whatever it takes to uphold the power of this presidency – even if it means protecting a lawless President who violates the Constitution. Meanwhile, the Republican Party is willing to stand by both men every step of the way.

House Intelligence Committee Chairman Adam Schiff (D-CA) called William Barr “the second-most dangerous man in the country.” Judging by what Barr believes and the authoritarian tendencies he is willing to embolden, that statement rings true.