On Wednesday, NBC News reported that Deputy Attorney General Rod Rosenstein would be leaving the administration if and when William P. Barr is confirmed as attorney general, but only after special counsel Robert Mueller has issued a final report on his Russia investigation. Rosenstein staying in the job until the completion of the Mueller probe will hopefully serve as a necessary check on Barr, who takes an astonishingly expansive view of executive power that contradicts the basic tenets of his purported belief in constitutional originalism and that could threaten the very core of the Mueller investigation.
In June, Barr wrote a memo to Justice Department officials to attack the special counsel investigation, and specifically a theory of the case for potential presidential obstruction of justice based entirely on media speculation regarding Mueller’s intentions. It’s weird for a lawyer to write a 19-page single-spaced memo attacking a hypothetical theory. But the memo includes two sentences that betray both Barr’s extremism in defining the powers of the president and a deep lack of seriousness when it comes to constitutional interpretation.
Barr, a former attorney general under George H.W. Bush, writes, “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.”
From this extraordinary premise, Barr derives an extraordinary conclusion: “Because the President alone constitutes the Executive branch, the President cannot ‘recuse’ himself” from control over any federal prosecutorial investigation, including an investigation in which he has a personal stake. In other words, he is constitutionally entitled to call off any prosecution, even if he, his family members, or close associates are likely targets.
What Barr ignores is that Article II of the Constitution—the charter for the executive branch—explicitly refutes this reading. Article II refers specifically to separate “executive Departments.” So, constitutionally, it is nonsense to assert that the president “alone” is the executive branch.
Barr’s rhetorical bravado might well be understood as just a shorthand reference to an idea that he championed as a Justice Department official in the George H.W. Bush administration. The idea, as Barr’s memo relates it, is that the president is “the sole repository of all Executive powers conferred by the Constitution.” He continues, “The full measure of law enforcement authority is placed in the President’s hands, and no limit is placed on the kinds of cases subject to his control and supervision.” Again, this reading, which former Vice President Al Gore dubbed the theory of the unilateral executive, blatantly ignores the plain meaning of the words in the Constitution as well as the facts of the founding era.
The implications for presidential power of this theory were set forth by Barr himself through a series of memorandums issued by the Office of Legal Counsel during the first Bush presidency. The most comprehensive of these, a document Barr signed as assistant attorney general in 1989, is entitled “Common Legislative Encroachments on Executive Branch Authority.”
What is shocking about this 1989 memo is how often it asserts unfounded claims of presidential power without any regard for constitutional text or its interpretation by the founding generation. Barr wrote, for example, “It has long been recognized that the President, both personally and through his subordinates in the executive branch, determines and articulates the Nation’s foreign policy.”
“Articulates,” yes. “Determines,” absolutely not. Article I assigns to Congress a host of specific powers with undoubtedly profound impacts on foreign policy, including the powers to regulate foreign commerce, to raise and support armies and the Navy, to determine the domestic application of international law, and to declare war.
The 1989 OLC memo also contends that Congress violates the president’s appointment powers by “impos[ing] impermissible qualifications requirements on principal officers.” It objects, for example, to long-standing statutory requirements “that a fixed number of members of certain commissions be from a particular political party.” This would have surprised the first Congress, which required, for example, that the president appoint an attorney general “learned in the law.” There is no evidence that the Framers thought it impermissible for Congress to set broad requirements for holding federal appointive office.
Barr’s 1989 memo further asserted that statutory requirements mandating administrative reports both to Congress and the president “infringe upon the President’s authority as head of a unitary executive to control the presentation of the executive branch’s views to Congress.” Such an argument also would have puzzled the first Congress, which required that the secretary of the treasury “make report, and give information to either branch of the legislature.” Barr’s treatment of these questions is unsettling—especially given his supposed philosophical commitment to constitutional originalism.
This brings me back to the fundamental premise of presidential unilateralism, namely, that the president is “the sole repository of all Executive powers conferred by the Constitution.” This is flat-out false and especially pernicious in its obliviousness to the history of criminal prosecution.
First, Article II of the Constitution gives the Senate both the executive power of concurring in treaties and the executive confirmation power regarding presidential appointments of all principal officers of government. Indeed, Alexander Hamilton was so persuaded by the latter grant of executive power to the Senate that he asserted the Senate would have to confirm not only the appointment of presidential appointees but also their removal.
It is just as clear that those who voted for the Constitution would not have understood that the vesting of executive power in the president would have given him complete authority over criminal prosecution. In the 18th and 19th centuries—and clearly, when Article II was ratified—criminal prosecutors were thought to be instruments of judicial authority.
Early state constitutions, some drafted before and some drafted after 1789, commonly regarded attorneys general or state’s attorneys as judicial officers. Six of the first 13 state constitutions mention an attorney general specifically, and each lists them with judges and judicial officers. State’s attorneys were appointed by courts in Connecticut, by the Legislature in Vermont, and eventually also by the Legislature in Tennessee. As for criminal prosecutions specifically, Americans inherited a common-law tradition of private prosecution, which persisted among the states well into the 19th century. In her landmark study of the history of criminal prosecution, Joan Jacoby wrote nearly 40 years ago, “At the beginning of the nineteenth century in America, the district attorney was viewed as a minor figure in the court, an adjunct to the judge. His position was primarily judicial, and perhaps only quasi-executive.”
Traces of the judicial character of prosecution persist even in federal law today. Congress did not give the attorney general supervisory authority over U.S. attorneys until 1861, which made them, constitutionally speaking, “inferior officers” in the executive branch. But just 18 months after Congress did so, it followed up with legislation providing that, should any such office become vacant, the judge of the relevant federal circuit would fill the vacancy until a new presidential nominee was confirmed and appointed. Today, the attorney general fills vacancies in U.S. attorney slots. If 120 days pass, however, without a presidential nominee confirmed and appointed, an acting U.S. attorney is appointed by the relevant U.S. district court.
The implications of this history are twofold: First, the founding generation would not have thought voting to ratify Article II meant ratifying plenary presidential control over criminal prosecution. Barr’s insistence that Article II guarantees presidents that power is thus ahistorical. Congress has already limited the president’s direct control over special counsels by vesting the authority to supervise them in the attorney general, not the president—a chain of command that presidents are legally bound to respect. If Congress were to go further and prohibit the discharge of special counsels except for “good cause,” it would likewise not be intruding on any authority that the Framers imagined they were bestowing on presidents.
If confirmed to be attorney general, though, Barr will likely have none of this. What his 1989 handiwork shows, along with his June 8 memorandum on the Mueller investigation, is a readiness to spout whatever textually oblivious, historically unfounded Article II interpretation is necessary to fend off legal accountability for the president. But despite what Barr may offer and what Trump has demanded, the attorney general is not supposed to be the president’s personal enabler. The attorney general is supposed to be the most important legal officer in the executive branch, bound to the Constitution and not the president’s whims. With Republicans holding the majority in the Senate, the confirmation of William Barr is all but certain. He is also all but certainly the wrong person for the job.
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