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William Barr’s Baffling and Alarming View of Executive Power

Cass R. Sunstein
William Barr’s Baffling and Alarming View of Executive Power

(Bloomberg Opinion) -- By all accounts, William Barr, President Donald Trump’s nominee for the position of attorney general, is a lawyer of integrity, decency and competence. For that reason, his memorandum of June 8, 2018, raising serious constitutional doubts about Robert Mueller’s investigation, is baffling — a genuine head-scratcher.

It is important to understand exactly why.

Barr has legitimate concerns. The legal definition of “obstruction of justice” is far from clear. Under federal law, a person is guilty of obstruction if he corruptly:

(1) “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding,” or

(2) “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

Barr is deeply worried about the meaning of (2). His concern is that a broad understanding of (2) would have “disastrous” implications. In his view, it could potentially become a crime for the president, the attorney general or some lower-level official to call for the exercise of prosecutorial discretion, to give some direction about how to handle a case, or to manage litigation and enforcement.

Fair enough. Suppose that a president directs his attorney general to show leniency to illegal immigrants. Or suppose he tells the administrator of the Environmental Protection Agency to focus its prosecutorial activity on those who dirty the nation’s waters, and not on greenhouse-gas emitters.

It would be absurd to read (2) to criminalize those directions.

But Barr goes much further. He argues that if Congress made it a crime for the president “corruptly” to obstruct, impede, or influence an investigation into the president’s own crimes, it would intrude on the president’s constitutional authority.

That’s an extraordinary position. To understand the sweeping nature of Barr’s argument, suppose that a president decides to fire the attorney general for only one reason: He is investigating serious allegations of criminal activity by the president.

Now suppose that the president decides to fire the deputy attorney general, the associate attorney general and all 12 assistant attorney generals for only one reason: They insist on investigating serious allegations of criminal activity by the president.

In short, the president is cleaning house in the Justice Department, until it is led only by people who agree not to investigate serious criminal allegations against him. Barr thinks that Congress lacks the constitutional authority to forbid the president from doing that. In his words:

Under the Constitution, the President’s authority over law enforcement matters is necessarily all-encompassing, and Congress may not exscind certain matters from the scope of his responsibilities. The Framers’ plan contemplates that the President’s law enforcement powers extend to all matters, including those in which he had a personal stake . . . .

Really? It is fine to use terms like “necessarily” and “exscind” and “the Framers’ plan,” but for propositions of this kind, one would expect an experienced lawyer to offer some citations — from James Madison, from the founding period, from historical practice, from the Supreme Court.

Astonishingly, Barr offers no citations at all.

Barr goes on to attribute to Robert Mueller an intention to deem a presidential action “corrupt” if it is an effort to influence an investigation into the president’s own conduct. Barr offers no basis for guessing about Mueller’s intentions. What is far more remarkable is his suggestion that “the Constitution’s grant of law enforcement authority to the President is plenary” and therefore “illimitable.”

Again: No citations. The founding period argues strongly against Barr’s claim. The Supreme Court has unambiguously rejected it.

Barr is right to say that the president has broad authority to remove executive officers. The attorney general serves at his pleasure. But that doesn’t deprive Congress of the authority to say that if a president fires a subordinate with the specific intention of preventing investigation of his own criminal actions — well, that’s itself a crime.

Barr’s memorandum is full of speculative claims about what Mueller is thinking, of inflammatory, over-the-top rhetoric (the “implications of Mueller’s approach . . . are astounding”), and of unsupported and novel legal conclusions. If the memorandum had been written by the Office of Legal Counsel of the Justice Department, it would be far below professional standards. It might not be embarrassing — but it would be pretty close to that.

Barr has a distinguished record, and no presidential nominee should be judged on the basis of a single memorandum. But it’s fair for members of Congress to be concerned about Barr’s understanding of executive power — and about how he would apply that understanding in an exceptionally difficult period.

To contact the author of this story: Cass R. Sunstein at csunstein1@bloomberg.net

To contact the editor responsible for this story: Katy Roberts at kroberts29@bloomberg.net

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Cass R. Sunstein is a Bloomberg Opinion columnist. He is the author of “The Cost-Benefit Revolution” and a co-author of “Nudge: Improving Decisions About Health, Wealth and Happiness.”

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