Republicans are determined to make Bill Barr’s dream of an imperial presidency a reality

Conservative Columnist Jennifer Rubin writes in the Washington Post today that during the Senate impeachment trial of Trump on Wednesday, Alan Derschowitz argued that Trump “can act corruptly in foreign policy if he thinks it is good for the country that he be reelected” It’s nothing less than an argument that makes Trump “an absolute monarch and reads the impeachment power out of the Constitution.”

“It was a telling moment that summed up what is at stake here,” Rubin writes. “Republicans are asked to buy into the proposition that abuse of power is acceptable, even to rig an election or to betray our national security interests. Republican members of the cult — including most Republican senators — are eager to crown Trump an absolute monarch; the rest of us should be scared stiff.”

Republicans have been making the argument for a Trump imperial presidency in court since last year, shortly after Barr became Attorney General last February.

By July it quickly became clear during oral arguments in the appeals case where President Trump sought to block a congressional subpoena for his financial records, that Trump is absolutely determined to use A.G. Barr’s position that President Trump is almost entirely immune from any congressional oversight or regulation.

Talking Points Memo summed up the oral arguments this way:

“William Consovoy, the lawyer who is representing Trump and his family, doubled down on arguments made at the lower court that Congress has essentially no oversight authority over the President. He also suggested that almost any law that seeks to address ethical issues with the presidency would be considered unconstitutional.”
“Imagine, in the future, you have the most corrupt president in humankind, openly flaunting it, what law could Congress pass?” Judge Millett asks.

Consovoy: “I think it’s very hard to think of one.”

There were warnings from the legal community when Barr was being considered for A.G. that the memo he had written castigating Mueller was a bad sign.

Neil Kinkopf, ACS Faculty Advisor and Professor of Law, Georgia State University College of Law, used the term “imperial presidency” in his article last January for the American Constitution Society, “The Barr Memo and the Imperial Presidency“. Everyone should read Kinkopf’s article.

Barr’s own ideological view is that the POTUS is an imperial executive, far beyond a unitary executive, and as he stated in his memo regarding the Mueller investigation into allegations of Russian efforts to interfere in the 2016 presidential election:

“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.”

Kinkopf states in his article that “It is impossible to conceive of all the damage this theory will do in the hands of the Trump Administration”, but he cites a few immediately obvious implications.

Barr’s view of presidential power would hold independent agencies unconstitutional. He believes the President holds  “illimitable” power over all law enforcement actions on behalf of the United States. That would mean the following:

The President may prohibit executive branch agencies from sharing information and reports with Congress. The President, acting as Commander in Chief, may order the use of torture as an interrogation technique notwithstanding federal law prohibiting it.The President, acting as Commander in Chief, may order warrantless domestic surveillance despite statutory warrant requirements such as the Foreign Intelligence Surveillance Act. The President may initiate and prosecute a full-scale war without first receiving a declaration or authorization from Congress. The President alone may determine the nation’s foreign policy. And, statutes should be read to relieve the President of statutory obligations.

The implications are frightening to contemplate in Trump’s hands, but it’s clear we are on the road to an imperial presidency. All it will take for an imperial presidency to be established is for the Senate to acquit Trump in the impeachment trial. Barr was the absolute worst choice for A.G. because Trump is absolutely the worst person in the world to be given such power.

Jennifer Rubin is right; “Republican members of the cult — including most Republican senators — are eager to crown Trump an absolute monarch; the rest of us should be scared stiff.”

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