Attorney General William Barr has been criticized for his capacious view of executive power. It’s a view that some other conservatives also hold, and also that some progressives hold, generally dependent upon which party occupies theWhite House.
But Barr’s performance last week as he released the Mueller report betrayed a view of the presidency that goes well beyond mainstream constitutional theories. If his influence is allowed to become a legitimate position, the damage to the rule of law in America could far out-last the drama of the Mueller report itself.
Since at least the 1980s, many conservatives have adhered to a unitary executive theory of executive power. The theory is based on Article II, Section 1 of the Constitution: “The executive Power shall be vested in a President of the United States of America.” That means just the president, and the executive power can’t be fractured and reassigned to various commissions and committees as Congress was fond of doing through most of the 20th century. Under unitary executive theory, all executive officers have to be, in some way or another, accountable to the president.
This is why the Department of Justice maintains as official policy – which is binding on the executive branch – that a sitting president can’t be indicted. The Justice Department prosecutors who would secure such an indictment are subordinates of the president; they merely have some of the executive power of the president delegated to them. It makes no sense that they could use the president’s own powers against him, so he can’t be indicted.
But there’s a world of difference between a policy that the president isn’t subject to indictment and a policy that the president can’t break the law per se. And the latter is what Barr seemed to endorse last week. In his press conference, Barr told reporters that he “I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.” And yet the Mueller report quite clearly indicates that’s not the case.
Obstruction of justice, under the statute the Mueller team used, requires three elements: an obstructive act, corrupt intent (meaning intending to gain a dishonest or unfair advantage in the face of investigation), and a nexus to an ongoing investigation. The Mueller report lays out how those three elements apply in 10 – 10! – separate instances. In some of those cases, Trump used his official presidential powers to obstruct the investigation personally, but in others he didn’t: Directing someone, in this case White House Counsel Don McGahn, to falsify evidence for the purpose of misleading investigators is an obstructive act committed with corrupt intent and a clear nexus to an ongoing investigation. (Vol. II, p. 113-114.) What does Barr find lacking?
In the conclusion of the report, Mueller explicitly rejects the idea that there was insufficient evidence to prove obstruction, referring instead to legal issues (briefed exhaustively in Vol. II, p. 159-182) that prevent a traditional prosecutorial judgement:
Because we determined not to make a traditional prosecutorial judgment, we did not draw ultimate conclusions about the President’s conduct. The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment. At the same time, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, we are unable to reach that judgment. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him. (Emphasis added.)
Whatever caused Barr to overlook clear evidence of obstruction, it wasn’t unitary executive theory. Just because the president can’t be indicted with his own powers doesn’t mean he can’t break the law.
Instead, there are two possibilities about what Barr may have been thinking. Neither one of them is very good.
Option 1: Anything the president does that even tangentially or theoretically involves his executive power is not a crime, because the Constitution gives him those powers and no law can contradict the Constitution. While logical on its surface, this line of reasoning is pure poppycock.
There’s no reason this standard would apply only to obstruction. Postal fraud is a federal crime. If the president directed the chairman of the joint chiefs to commit postal fraud on his behalf, Barr’s theory would hold that the president’s commander-in-chief power allows him to order the military to do whatever he wants, including commit fraud using the Postal Service.
It’s a fraud to cheat on taxes. Does the president’s power as chief executive over the Treasury Department permit him to direct the IRS not to audit a plainly fraudulent tax return? (For all we know, that last one wasn’t even a hypothetical.)
This is the imperial presidency, in which the executive powers, because they are vague, are assumed to be virtually limitless
Option 2: Barr’s gone full MAGA. Inflate the imperial presidency to own the libs. Burn your reputation as a straight-shooter and honest broker to own the libs. Ape Bill Clinton to own the libs. Repeat Watergate and set up the next Jimmy Carter presidency to own the libs. Do anything to own the libs.
Spin out Option 1 for a few generations, and the presidency starts to look an awful lot like princeps. They don’t call it the imperial presidency for nothing.
Spin out Option 2, and the entire federal justice system becomes a tool for political recriminations and goat-getting. The framers of the Constitution went to great lengths to prevent the use of government power for political vengeance, including adding the Bill of Rights. They didn’t foresee that selectively declining to use government power could have the same effect.
There are no good options.