The Barr Memo and the Imperial Presidency

NOTE:  This is “an oldie, but a goodie” article from the American Constitution Society about Bill Barr’s beliefs about the American presidency. With what we’re hearing from people inside the Justice Department and the firing of qualified attorneys for Trump hacks, it’s worth posting.

Last summer, William Barr wrote a memo for Deputy Attorney General Rod Rosenstein and Assistant Attorney General for the Office of Legal Counsel Steve Engel.  The memo had to do with the Mueller investigation and whether President Trump can be understood to have violated the obstruction of justice statute (spoiler alert:  his answer was an emphatic “no”).  Because William Barr is Trump’s nominee to be Attorney General, the memo has been the focus of attention for what it says about the Mueller investigation and for what it directly implies about that investigation (more spoilers:  (1) Trump can take over, manipulate, or terminate the investigation, and (2) don’t hold your breath waiting to see a Mueller report).

If possible, I would like to focus attention elsewhere – on the ramifications of Mueller’s theory of the President’s constitutional powers for the rest of the government.  Those ramifications are vast and proceed from the memo’s most jaw-dropping passage:  “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.”[1]

The conception of presidential power embraced in the Barr Memo goes well beyond the ordinary unitary executive claims.  I have taken to calling it the imperial executive, in part because no Attorney General has ever come so close to accepting Louis XIV’s motto, “L’etat c’est moi.” This theory revives the view of executive power that launched a thousand signing statements, generated the torture memo, and justified warrantless domestic surveillance in spite of the legal prohibitions in the Foreign Intelligence Surveillance Act.  It is impossible to conceive of all the damage this theory will do in the hands of the Trump Administration, and a full catalog would require a book length post.  I would, nonetheless, like to highlight a few implications that strike me as immediately obvious. Continue reading.