Bill Barr defends the Unitary Executive

In Bill Barr, president Trump has found his long sought Roy Cohn, the fiercest, most powerful attorney a president could have — Trump appointed him  head of the Department of Justice.  Barr has been tireless in protecting his boss.   He is currently traveling the world to assemble evidence that the Special Counsel’s report, which according to Barr exonerated the president of all wrongdoing, having found insufficient evidence of indictable crime, and was a baseless partisan witch hunt — the six convicted close presidential aids charged pursuant to the investigation notwithstanding.

To me, the most shocking thing about Bagpiper Bill Barr’s recent partisan speech, delivered to the Koch-backed Federalist Society, is that the full text of it is on the Department of Justice website.   Talk about chutzpah, talk about balls!   Nobody can accuse Barr of being meek.   That’s a big reason the president hired the hard-charging doctrinaire conservative and declared defender of the Unitary Executive (sometimes called the Imperial Executive)  to oversee the administration of justice in his United States.  You can read Barr’s queasy, lawyerly marriage of church and state HERE.

Bear in mind that Barr, a true believer, is completely consistent in these remarks.  He is, militantly, what he always was.  He’s part of a modern conservative movement, along with other powerful luminaries like Antonin Scalia, Richard “Dick” Cheney and Boof Kavanaugh, guided by “originalism” (the real and imagined intent of the Framers) and dedicated, for a hard to fathom reason, to a strong, unfettered Chief Executive [1].  These are also the values of the Federalist Society — as long as the Chief Executive is not a partisan liberal traitor, or somebody not born here, or a scoundrel and libertine who lies about oral sex.

The traditional balance of powers between the branches was restored after President Nixon’s criminal abuses of presidential power.  The Executive Branch, the Judiciary and Congress were conceived of as three co-equal branches, keeping each other honest, protecting all of us from a would-be tyrant, or a cabal of such persons in any one branch.   The desire to avoid presidential abuse of  his oath of office, committing, covering up and obstructing investigations of crimes while president, led to efforts to curtail expanded presidential power.  The eventual curtailment of the criminal excesses of Richard Nixon were a vivid example, to many Americans, of the genius of the separation of powers in our constitution. 

The perceived limitations on executive power were seen as an intolerable insult by certain conservative stalwarts, Nixon loyalists like Dick Cheney, Donald Rumsfeld, Robert Bork, Roger Stone, the recently decorated Ed Meese.  Don’t ask me why ultra-conservatives  support an Imperial President, since half of the presidents are Democrats who would, theoretically, rule with the same unchallengeable prerogatives as the Republican ones.  I can only surmise that the doctrine relates to the conservative Social Darwinist love of “Order”, protection under law, by a powerful CEO, of the power of the powerful to retain all of their privileges and immunities without government interference — and let the weak fend for themselves.  Makers vs. Takers, Dogg.

Barr is a hyper-partisan.   He’s a smart, if unprincipled, lawyer.  He knows how to sound extremely reasonable and definitive when explaining his legal rationales.  He is capable of persuasively misleading without lying outright, in any actionable way.   He authoritatively defanged and neutered the Mueller report, (a misguided attempt by Mueller to be scrupulously fair-minded while investigating incriminating facts that led to the convictions of six close presidential associates who lied to DOJ investigators, obstructed his investigation and committed other crimes in service of the president), and made the findings of his report a dead letter in the mind of American voters weeks before he released a single excerpt of it.   

The report, Barr said, left the ultimate call about the damning facts contained in the report up to him as Mueller’s boss  — not to a divided Congress as Mueller concluded was the only constitutional mechanism for addressing colorable presidential abuses of power in the face of a DOJ policy against criminally indicting the president — and made the call, weeks before releasing the report, or even Mueller’s carefully vetted Executive summaries, that the report  found insufficient evidence to charge the president with anything …  it basically exonerated the president.   Barr made a formal, binding decision, he declined to prosecute, on behalf of the Department of Justice.   Case closed.

Barr suggested, and later affirmed by opening a criminal investigation into his own DOJ, that the president had been the victim of a government conspiracy against him.   This gave gravitas and authority to Trump’s theme of personal persecution by sick and dangerous enemies.  Barr set out to investigate whether the investigation itself had been a possibly criminal partisan conspiracy against the president.   

Barr claimed Mueller’s report exonerated the president, the guilty-looking subject of volume two which detailed numerous acts of presidential  obstruction of justice.  Like a skilled magician, Barr made the ten troubling and dramatic scenes of presidential misfeasance, in that seamless and ongoing pattern of corruption disappear.  Barr stated there was “insufficient evidence” though an ongoing investigation into Roger Stone would, a few months later, demonstrate that Stone had also lied to protect the president.  The truth that emerged at Stone’s trial showed that Trump lied in his written answers to Mueller when he claimed, as Stone falsely did, that the president had no advance knowledge of political dirt that Wikileaks or the Russians had ready to go.   

Barr, in a written letter to the president published in newspapers, encouraged the president to make the broadest blanket immunity claim in American history– to defy all subpoenas for all testimony of anyone who ever worked for you and to refuse to produce any documents that could damage the presidency– and fight it all the way to the Supreme Court, to run out the clock on all the Congressional subpoenas, if nothing else.

Barr singlehandedly, acting on his strongly-held principle that the Chief Executive has unfettered powers that must not be unfairly encroached on by “checks and balances”, headed off the impeachment of Trump, the Congressional investigation that should have followed the release of the opaque but damning Mueller report.   He also improperly intervened in an attempt to bury the whistleblower report that had been found credible and urgent by the Inspector General.

Back to the Mueller report– there is a pile of strong, specific evidence of wrongdoing in the report, even as it didn’t find sufficient evidence of criminal conspiracy (in part because many key witnesses lied to investigators, played for time as pardons were dangled, several  destroyed evidence) it also, pointedly, could not exonerate Trump for obstruction of justice.   The arguments over the report dragged on in public, the hopes of opponents of the president decisively dashed once after Mueller reluctantly testified before Congress, answering questions laconically and continually citing his immense, detailed, legalistic report as his last word on the subject.  After Mueller testified in Congress, tepidly and against his will, months after his expurgated report was released,  Trump crowed again about how the $30,000,000 witch hunt into the Russia Hoax hadn’t touched him, had, as Barr suggested resulted in “complete and total exoneration”. 

The very next day, we learn, the president called the new Ukrainian president and told him he’d be happy to release the weapons a rare bipartisan Congress had approved for his country’s defense against Russian aggression– as soon as the Ukrainian made a public announcement that he’d reopened a corruption investigation into Joe Biden’s role in getting his son Hunter a cushy job for a corrupt Ukrainian gas company.    Partisans are now trying to impeach the president, in spite of the president’s constant protestations of innocence, in the face of his constant attacks on witnesses and demands to know the identity of the whistleblower, a person whose identity protected from vengeful superiors like Trump by the Whistleblower Act.

Last Friday, in front of his philosophical brothers at the Federalist Society, Barr laid out what he portrayed as the fundamental corruption of those trying to impeach the president.  He did this in the course of a speech on originalism and the Founder’s apparent intent that the president basically rule like a king.  Barr considers himself a virtuous person pursuing a deific end (he deftly turns this description of himself into an insult on his enemies on the left — his audience of one smiling). 

Typically, Barr put politics in rigid  black and white partisan terms, triggering the libs, as the kids who love Trump say.   The in-your-face “I know you are, but what am I?” projection of these remarks, by a man who believes it is his virtuous duty as a religious Christian to defend his sovereign, is — in-your-fucking-face.  I’ll do my best to refrain from commenting on Barr’s remarks, outside of asking you to assess his assertions based on our current political climate and the respective actions of each party.

Indeed, measures undertaken by this Administration seem a bit tame when compared to some of the unprecedented steps taken by the Obama Administration’s aggressive exercises of Executive power – such as, under its DACA program, refusing to enforce broad swathes of immigration law.

The fact of the matter is that, in waging a scorched earth, no-holds-barred war of “Resistance” against this Administration, it is the Left that is engaged in the systematic shredding of norms and the undermining of the rule of law.  This highlights a basic disadvantage that conservatives have always had in contesting the political issues of the day.  It was adverted to by the old, curmudgeonly Federalist, Fisher Ames, in an essay during the early years of the Republic. 

In any age, the so-called progressives treat politics as their religion.  Their holy mission is to use the coercive power of the State to remake man and society in their own image, according to an abstract ideal of perfection.  Whatever means they use are therefore justified because, by definition, they are a virtuous people pursing a deific end.  They are willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications [2].   They never ask whether the actions they take could be justified as a general rule of conduct, equally applicable to all sides [3].

Conservatives, on the other hand, do not seek an earthly paradise [4]. We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing.  This means that we naturally test the propriety and wisdom of action under a “rule of law” standard.  The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances? [5]

For these reasons, conservatives tend to have more scruple over their political tactics and rarely feel that the ends justify the means [6]. And this is as it should be, but there is no getting around the fact that this puts conservatives at a disadvantage when facing progressive holy war, especially when doing so under the weight of a hyper-partisan media [7].

earlier in his speech, Barr had invoked the frightful, irrational hostility of millions to the duly elected president.

Immediately after President Trump won election, opponents inaugurated what they called “The Resistance,” and they rallied around an explicit strategy of using every tool and maneuver available to sabotage the functioning of his Administration.  Now, “resistance” is the language used to describe insurgency against rule imposed by an occupying military power.  It obviously connotes that the government is not legitimate.  This is a very dangerous – indeed incendiary – notion to import into the politics of a democratic republic.  What it means is that, instead of viewing themselves as the “loyal opposition,” as opposing parties have done in the past, they essentially see themselves as engaged in a war to cripple, by any means necessary, a duly elected government [8].

By the way, Barr’s repeated invocation of Malcolm’s “by any means necessary” is not a dog whistle wasted on his prosperous, ambitious, status quo protecting white audience at the Federalist Society.   Raising the specter of an angry, uncompromising black man, and comparing all political opponents to this dangerous type, is catnip for a right wing audience, especially in our current white nationalist times.

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By the way, Barr also declares that he thinks it’s wrong to use the courts for political purposes [9]. 

 

NOTES

[1]  Barr smugly dismisses the entire ‘nefarious’ argument about the Unitary Executive thusly:

One of the more amusing aspects of modern progressive polemic is their breathless attacks on the “unitary executive theory.”  They portray this as some new-fangled “theory” to justify Executive power of sweeping scope. In reality, the idea of the unitary executive does not go so much to the breadth of Presidential power.  Rather, the idea is that, whatever the Executive powers may be, they must be exercised under the President’s supervision.  This is not “new,” and it is not a “theory.”  It is a description of what the Framers unquestionably did in Article II of the Constitution.

[2] Unlike freedom and democracy lover Mitch McConnell, denying, on behalf of his political backers, President Obama his constitutional duty to nominate a Supreme Court replacement for the Senate’s consideration. Or not allowing a hearing or vote on any House Bill the president has not already indicated he approves of. 

[3] see note 2

[4] Unlike godless Secularist so-called progressives, men like Barr devoutly believe in a universe ruled by Christ where our reward, presumably,  is in a glorious afterlife in the real paradise.

[5] see note 2

[6] see note 2

[7] The only legitimate holy war, as men like Barr see it, is for Christ’s rule on earth as it is in heaven.  The inherent disadvantage of beleaguered conservatives has been, many might say, nullified by the Supreme Court’s embrace of unlimited “dark money” in political campaigns, methinks.  More than nullified, actually.

[8] See note 2

[9]  talk about yer virtuous, deistic hypocrites:

The “constitutional means” to “resist encroachment” that Madison described take various forms.  As Justice Scalia observed, the Constitution gives Congress and the President many “clubs with which to beat” each other.  Conspicuously absent from the list is running to the courts to resolve their disputes.

 

 

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