‘The closest thing we have to Dick Cheney’: Legal experts explain how Barr is ‘putting his thumb on the scale’ for Trump
The New York Times on Monday published a deep-dive into the legal and political career of William Barr, purporting to show that Trump’s attorney general “is neither as apolitical as his defenders claim, nor as partisan as his detractors fear.” But the article also describes Barr’s deference to Article II of the U.S. Constitution, providing a number of examples related to the attorney general’s long-held belief in presidential powers — and effectively undermining claims he’s not as partisan as critics claim.
Last week, University of Michigan Law professor Julian David Mortensen published an essay in the Atlantic that challenged those who believe “executive power” grants the U.S. president all “the prerogatives of a British king, except where the Constitution specifies otherwise.”
“‘The executive power’ granted at the American founding was conceptually, legally, and semantically incapable of conveying a reservoir of royal authority,” David Mortensen wrote. “The real meaning of executive power was something almost embarrassingly simple: the power to execute the law.”
But, for Barr and others, Article II of the U.S. Constitution appears to grants the president vast powers to conduct foreign policy, terminate treaties, recognize foreign governments and more.
“Bill’s natural default is Article II,” Jonathan Turley, a professor at George Washington University Law School and longtime friend of Barr, told the Times. “He views a strong executive as more needed than ever to stabilize the country and the world at large.”
Barr’s deference to executive authority could explain why attorney general delivered a widely-panned, misleading statement on the report authored by special counsel Robert Mueller.
Mary McCord, who led the Justice Department’s national security division under former President Barack Obama, said she was shocked by how much Barr “echoed the president’s own statements” in his portrayal of the report.
“I thought he was an institutionalist who would protect the department from political influence,” McCord said. “But it seems like everything he has done so far has counseled in the opposite direction.”
An McCord isn’t alone in seeing Barr’s role in the Trump administration as unusually powerful and deferential to the executive. Charles J. Cooper, a former senior Justice Department official, called Barr “the closest thing we have to Dick Cheney.”
Paul Rosenzweig, a former prosecutor who served on the independent counsel team that investigated former President Bill Clinton, likewise argued that Barr’s actions are “putting his thumb on the scale” for Trump.
Barr, Rosenzweig argued, is “a situational ethicist who sees legal issues through the prism of what benefits him and his party.”
Indeed, nothing could more clearly reflect Barr’s situational ethics than his response to Ken Starr’s investigation into Clinton. A far cry from opening an investigation into the origins of the Russia probe, Barr claimed attacks on Starr, the former independent counsel, “appear to have the improper purpose of influencing and impeding an ongoing criminal investigation and intimidating possible jurors, witnesses and even investigators.”
Compare that with Barr’s April 18 press conference on the Mueller report, during which the attorney general insisted Trump “was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.”
“Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation,” Barr said this time around.
