And how it maybe should apply to what’s going on today, but isn’t…
In his 19-page note, dispatched unsolicited to the Justice Department, Barr deeply criticizes the Mueller investigation for investigating the President. And he argues strongly against requiring the President to be questioned by investigators. Which he wasn’t. Which Mueller expressed strong frustration about, but also probably realized was never going to happen once Barr became his boss.
Barr’s central argument? We’ll paraphrase (at the risk of oversimplifying because we’re not lawyers): the President can’t be investigated by the Justice Department for obstruction of an investigation. Any investigation. Even one in which he is personally implicated, because as the nation’s Chief Executive, he controls the Justice Department, and he cannot recuse himself from being President.
Barr makes an exception for actual destruction of evidence. We don’t know why that’s not covered too, except for it’s what brought Nixon down, and maybe he doesn’t want to argue that investigation wasn’t legal.
“The Constitution vests all Federal law enforcement power, and hence prosecutorial discretion, in the President….”conflict of interest” laws do not, and cannot, apply to the President, since to apply them would impermissibly “disempower” the President from supervising a class of cases that the Constitution grants him the authority to supervise. 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….[C]onstitutionally, as applied to the President…there is no legal prohibition…against the President’s acting on a matter in which he has a personal stake.”
And in case we weren’t paying attention, Barr continues:
“The Constitution itself places no limit on the President’s authority to act on matters which concern him or his own conduct….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.” (Barr’s emphasis.)
Now here’s the interesting part. Barr doesn’t make the argument that the President is de-facto King of Everything, just that the Constitution provides perfectly good methods for dealing with abuse of power by the President that don’t include investigations by people who report directly to him.
“[T]he determination whether the President is making decisions based on “improper” motives or whether he is “faithfully” discharging his responsibilities is left to the People, through the election process, and the Congress, through the Impeachment process.”
And again, for emphasis:
“Congress has usually been quick to respond to allegations of wrongdoing in the Executive and has shown itself more than willing to conduct investigations into such allegations. The fact that President is answerable for any abuses of discretion and is ultimately subject to the judgment of Congress through the impeachment process means that the President is not the judge in his own cause.”
OK, so here we are. With a pretty blatant attempt by the President to trade arms and other personal favors to Ukraine in exchange for dirt — real or manufactured — on a political opponent. And yet Attorney General Barr thus far is supporting the White House’s refusal to cooperate with Congress’ impeachment investigation in any way: blocking U.S. Ambassador to the European Union Gordon Sondland from testifying, and putting Congress on notice that’s going to be par for the course. (Former U.S. Special Envoy to Ukraine Kurt Volker did testify, but only after quitting that job, so he was no longer a Trump Administration employee).
But why? According to Barr himself, back in his memo, Congress is now doing it the “right way”, as prescribed by the Constitution.
Does that now not apply if the lawmakers behind the investigation are annoying? It’s their job to be. And how does Barr’s earlier position on impeachment by Congress jibe with Trump’s oft-Tweeted and stated assertion that the Representatives leading the way are guilty of “treason”?
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