Editor: Understandably, everyone is focused on the COVID-19 pandemic now. But there’s another dangerous virus that’s spreading and attacking the rule of law in the U.S.
Attorney General William Barr is using an extreme view of presidential power called the “Unitary Executive” to provide legal cover to President Trump’s unprecedented actions. As such, the attorney general should resign.
The U.S. Constitution says, “The executive Power shall be vested in a President of the United States of America.” That’s a broad power. But what are its limits?
Would you want the president or attorney general to personally intervene in your criminal case? Do you want judges to be attacked and threatened by the president? How can we ask ordinary citizens to do their civic duty as jurors if they are personally attacked by the president?
In February, I was among some 2,500 former Department of Justice (DOJ) officials and prosecutors who signed a petition from protectdemocracy.org calling for the resignation of the attorney general for his interference with the fair administration of justice.
In the 1970s, I was a prosecutor and special assistant to the assistant attorney general (criminal division). At the time, Watergate was a really big deal. But compared to what’s happening now, Watergate was just third-rate burglary topped with a coverup. It stopped when President Nixon resigned; damage to the rule of law was limited.
President Trump has been attacking jurors, prosecutors and judges. His tweets are signals to his enabler, Barr, to fix justice for his friends – like the Houston Astros used hand signals to fix their games. It’s unprecedented.
On June 8, 2018, Barr – describing himself as “deeply concerned with the institutions of the presidency” – wrote an unsolicited, 19-page memo to Deputy Attorney General Rod Rosenstein. It said the Mueller investigation must not be allowed to interrogate the president about alleged obstruction, for pressuring FBI director James Comey to drop his investigation of Michael Flynn.
Barr argued that, “The Constitution’s … law enforcement power to the president is plenary… He alone is the executive branch.” He can even influence a proceeding in which his own conduct is being scrutinized.
Barr left the door open a crack by saying that if the president had colluded with an actual investigation, maybe that would have been OK to investigate. But, ultimately, the only real remedies were impeachment and the ballot box.
Apparently, President Trump liked the memo, and Barr became attorney general.
Barr’s position is called the “Unitary Executive” theory. In fairness to Barr, his memo was carefully written, with many citations, and his position had some deep historical roots. But the results were wrong and dangerous.
One root was Richard Nixon., who once said, “When the president does it, that means it’s not illegal.” And George W. Bush’s assistant attorney general, John Yoo, defending torture of terrorists, said there is a reservoir of presidential power “that’s not specifically set out in the Constitution.”
So, what’s so bad now? The razorblade in the Kool-Aid is that now, the Unitary Executive theory is being regularly used as the Trump Administration’s battering ram against the rule of law. Barr provides legal cover for the president’s unrestrained, unprecedented actions, such as totally blocking congressional subpoenas in Trump’s impeachment proceedings.
The rule of law holds that all are equally subject to the law, including judges and kings. But it’s not some impregnable Rock of Gibraltar. It’s fragile and vulnerable. Ultimately, it’s only based on a shared belief by all of us in fairness and equal justice under law. Without that, the tentacles of cynicism will strangle it and take democracy down as well.
Attacks on judges, jurors and prosecutors must stop. The administration of justice is not a plaything for presidents to use to punish opponents and reward supporters. Pardons shouldn’t be dangled like hush money payments to keep the president’s friends from telling the truth under oath.
What should you do? Speak out. Tell your representatives to pay as much attention to their oath of office as getting elected. Vote.
At the close of the Constitutional Convention in 1787, Dr. James McHenry, delegate from Maryland, said to Ben Franklin: “Well, Doctor, what have we got – a republic or a monarchy?”
Franklin’s answer? “A republic – if you can keep it.”
Davic Muchow, Arlington
Muchow is managing partner of Muchowlaw and Adjunct Professor, Law, Business & Entrepreneurship, Georgetown University.