Barr’s Legal Views Come Under Fire From Conservative-Leaning Lawyers

A speech by Mr. Barr last week, in which he argued that Mr. Trump had never overstepped his authority, so alarmed a group of lawyers that they felt compelled to push back publicly.

By Katie Benner, NYTimes
Nov. 22, 2019

WASHINGTON — A group of conservative-leaning lawyers criticized Attorney General William P. Barr for the expansive view of presidential power he espoused in a recent speech and for his conclusion this spring that President Trump had not obstructed justice in the Russia investigation.

“In recent months, we have become concerned by the conduct of Attorney General William Barr,” the group, Checks & Balances, said in a statement that was shared Friday with The New York Times.

Members of the group have sharply denounced what they described as abuses of power by Mr. Trump, who is facing a fast-moving impeachment inquiry. The speech by Mr. Barr last week, in which he argued that the president had never overstepped his authority, so alarmed them that they felt compelled to push back publicly.

The Justice Department declined to comment.

At a conference hosted by the Federalist Society, an influential conservative legal group, Mr. Barr said in his speech that those who have sought to hem in Mr. Trump were denying the will of voters, subverting the Constitution and undermining the rule of law.

The president’s opponents “essentially see themselves as engaged in a war to cripple by any means necessary a duly elected government,” he said.

Checks & Balances is made up of Republican and conservative lawyers, including some who served in recent administrations. George T. Conway III, one of Mr. Trump’s most vocal critics and the husband of the White House counselor, Kellyanne Conway, is one of the group’s most prominent members.

Mr. Barr’s view on executive power is a misreading of the unitary executive theory, said Charles Fried, a Checks & Balances member and Harvard Law professor who endorsed the theory while he was solicitor general during the Reagan administration. In Mr. Fried’s reading of the theory, “the executive branch cannot be broken up into fragments.”

While that branch acts as a unified expression of a president’s priorities, with the president firmly at the helm, “it is also clear that the executive branch is subject to law,” Mr. Fried said. “Barr takes that notion and eliminates the ‘under law’ part.”

While Mr. Barr did not use the word “impeachment” in his speech, he laid out a new defense of Mr. Trump that was taken up by Republicans on Capitol Hill. In an effort to invalidate the inquiry, lawmakers had argued that the president did not withhold a White House meeting or military aid to pressure President Volodymyr Zelensky of Ukraine to publicly announce investigations that would benefit Mr. Trump politically.

After a week of damaging public hearings in which multiple witnesses offered new details of the president’s pressure campaign and said that he spoke openly of his desire that Ukraine publicly announce investigations, Mr. Trump’s supporters began to argue that he had acted within his rights.

Mr. Trump has also begun to echo Mr. Barr’s assertions. In an interview on Fox on Friday, he said that the decision to investigate his 2016 campaign’s ties to Russia “was an overthrow attempt at the presidency.”

Now that the claim that Mr. Trump never pressured Mr. Zelensky no longer holds, “the argument has got to be a ‘so what’ argument — Bill Barr’s argument that the president did all these things, but this is what a president can do,” said Stuart Gerson, a Checks & Balances member who was a senior campaign adviser to George Bush and a Justice Department official in his administration.

“The Republicans in the Senate and in the House think they’re in a Parliament, and their responsibility is to a prime minister to whom they owe party loyalty,” Mr. Gerson said. “That’s not the American tradition. One can recognize substantial executive power, but that doesn’t mean the legislative branch should be dead.”

Mr. Barr has argued that his view of presidential power stems directly from the Constitution. It delineates the responsibilities of the three branches of government, he has said, rather than allowing the legislature and the judiciary to check the powers of the president as two of three co-equal governing powers.

That interpretation of history “has no factual basis,” Checks & Balances wrote in its statement, including the claim that “the founders shared in any respect his vision of an unchecked president, and his assertion that this view was dominant until it came under attack from courts and Congress a few decades ago.”

The group said that the “only imaginable basis” for Mr. Barr’s conclusion that Mr. Trump did not obstruct the Russia investigation “was his legal view that the president is given total control over all investigations by the Constitution.”

Mr. Fried suggested that Mr. Barr’s interpretation of the law set a dangerous precedent. “Conservatism is respect for the rule of law. It is respect for tradition,” he said. “The people who claim they’re conservatives today are demanding loyalty to this completely lawless, ignorant, foul-mouthed president.”

Mr. Gerson echoed that sentiment. “It’s important for conservatives to speak up,” he said. “This administration is anything but conservative.”

Read the letter below, criticizing Attorney General William P. Barr.

November 21, 2019

Statement from co-founders and additional members of Checks & Balances:

As lawyers, many of whom have served in upper level positions in prior Republican administrations , we consider ourselves duty-bound to uphold the Constitution as a document of liberty.

In recent months, we have become concerned by the conduct of Attorney General William Barr.

We were troubled by his handling of the Mueller Investigation Report, including his release two days after he received the report of a short letter purporting to summarize its findings, and concluding with no factual discussion that there was no sufficient evidence of obstruction on the part of the President.

Subsequent review of the redacted Report made clear that there was actually extensive evidence of obstruction by the President, and that the only imaginable basis for Barr’s conclusion was his legal view that the President is given total control over all investigations by the Constitution, and thus cannot possibly be guilty of obstructing any criminal investigation by the Department of Justice.

We were also disturbed to read, when it became available for public review, the memorandum that Barr had submitted on June 8, 2018 to the Trump administration, before his appointment, laying out his views on the overall impropriety of the Mueller investigation as a whole, and explaining in detail Barr’s extremely expansive view of the character of Presidential powers.

It is clear to us that Barr’s views as enunciated  in this memo are incongruous with settled notions of American government as one of checks and balances and shared powers among the three branches.

And we are now concerned by Attorney General Barr’s November 15, 2019 address to the Federalist Society at its annual convention, in which he issued a call to reform our government in order to “restore” the autocratic vision of executive power that he previously articulated.

In that speech, Barr rewrote history with the unsupported claim that his view of presidential power was shared by the Founders, and has been the dominant one throughout most of our history, only to come under attack during the past several decades. His assertion, enunciated in bold face in the text of his speech, is that “both the Legislative and the Judicial branches have been responsible for encroaching on the Presidency’s constitutional authority.”

Barr’s view of history, including his claim that the Founders shared in any respect his vision of an unchecked president, and his assertion that this view was dominant until it came under attack from courts and congress a few decades ago, has no factual basis.

Actually, the Founders deliberately created a government of checks and balances, and the effectiveness of different presidents in exercising power within that framework has varied widely.

Indeed, the greatest assertions of presidential power have come in the last half century.

That our system has met those assertions with balanced responses of the other two co-equal branches is hardly a reason to abandon now the system that has served us well for so long.

Each of us speaks and acts solely in our individual capacities, and our views should not be attributed to any organization with which we may be affiliated.

Donald B. Ayer

George T. Conway III

Jonathan C. Rose

Paul Rosenzweig

Charles Fried

Stuart M. Gerson

Orin S. Kerr

Trevor Potter

Andrew Sagor

Jaime D. Sneider

J.W. Verret

Ilya Somin

I joined this letter. https://t.co/7WGwRbSEKB

— Orin Kerr (@OrinKerr) November 22, 2019

Ethics and Code of Conduct: Is a Co-Chair of Social Media for the State Bar of Texas Appellate Division Licensed to “Like” a Tweet Like This? #AppellateTwitter #lawtwitter #AuditTexas #RESTORETX #In2020ImGoingToQuit #Texas #SMM #SupremeCourt #ethics https://t.co/s9eYMgQQid pic.twitter.com/AgBttb9ujm

— LawsInTexas (@lawsintexasusa) November 22, 2019