Surprising nobody — but appalling to anyone who cares about Rule of Law and democratic process — yesterday Barr gave the same defense of Trump that Trump surrogates (Dershowitz, Giuliani, etc.) have been making all year.
The defense goes like this:
- Trump is head of the executive branch;
- Trump therefore has “constitutional” control over the executive branch;
- If Trump believes an executive branch investigation is based on false claims, he has the right to shut it down;
- Trump is permitted to shut down an investigation he thinks is “ill-founded” or “based on false accusations” out of concern for the effect the “false accusations” might have on his administration;
- This includes investigations into himself.
Barr argued that the Mueller probe was “ill founded” because it wasn’t proven that Trump “coordinated” with Russia, so was based on a false accusation.
This “defense” partly explains the right-wing obsession (and lies) about how the investigation started.
If the investigation was politically motivated—Trump surrogates argue—Trump can shut it down.
There are a few obvious problems with the “a president can exonerate himself” defense.
First, the GOP doesn’t offer this “defense” to all presidents. It didn’t apply to Clinton. And of course, just imagine if Obama had tried to shut down the Benghazi investigation.
So this isn’t a general rule as in Rule of Law: It’s a cynical way to shield a GOP president.
Second, the Mueller probe was (among other things) an investigation into Russia’s attack on our election. Mueller uncovered a “sweeping and systematic” criminal foreign attack on our election. Barr argued it would have been OK for Trump to shut that down.
Of course Trump loves the “a president can exonerate himself” rule. How convenient, right? (Also, how autocratic.)
Fortunately, the drafters of the Constitution were smart enough not to give the executive branch the task of deciding whether executive officers are guilty.
The Constitution plainly gives this power to Congress. (Consider where we’d be if the GOP still controlled the House. The situation is clearly improving.)
Profs. Matz and Tribe explain that the drafters of the Constitution specifically decided NOT to give the powers of impeachment and removal to the judicial branch:
Again, this prevents the president from appointing the people who would decide his guilt.
Giving the authority to Congress also transforms a legal process into a political process. Those who acts as judge and jury of the president are elected officials. They answer to constituents, and those constituents are basically all Americans.
Two presidents have been impeached (Johnson and Clinton). We’ve had two senate trials. Both were political theater. You can expect any future senate trials also to be political theater. This may annoy people who want it to work like a normal trial. Having the Chief Justice preside helps return the focus to law, but doesn’t fully transform a political process back into a legal one.
Thus the advantage of Congress deciding is that the judges and jurors are not appointed by the president. The disadvantage is that the process becomes political. You can expect a Senate trial to contain much grandstanding. The Court of Public Opinion takes on greater importance.
This is partly why Trump isn’t worried about whether his defense has legal merit. Trump expects, ultimately, to be tried in the Court of Public Opinion, which is where he is most comfortable. He doesn’t inhabit the world of facts. He enacts political theater.
Barr did two things yesterday:
- #1: He declared Trump not guilty
- #2: He stonewalled Congress
Because the Constitution gives Congress the power to impeach and remove officials, #2 is more serious.
Today Barr is refusing to be questioned by the House—an outrageous act of defiance.
The DOJ is refusing to honor Congressional subpoenas.
The DOJ is refusing to turn over the un-redacted report to Congress. This is where we are in the current crisis: Congress in battle with the Executive Branch. This raises the problem of how the House should respond to the lying and stonewalling of Attorney General Barr.
It’s clear that House Dems are not planning to surrender their constitutional duties. Let’s consider their options. They can declare Barr in contempt. Prof. Randall Eliason talks about the problems with this: A criminal referral goes back to the executive branch, which can decide not to pursue the matter.
Personally, I’m in favor of impeaching Barr. It’s clear he lied to Congress when he said that he didn’t know whether Mueller approved of his conclusions. Lying to Congress is a crime.
I say do the whole impeachment dance: Investigate Barr’s behavior. Hold public hearings on whether he lied and is undermining the Constitution. Draw up and vote on articles of impeachment. (Yes, this takes time. There’s no ‘fast-food democracy.’) Then send the articles of impeachment to the Senate for a trial.
“What if McConnell refuses to hold a trial?” you ask.
That will mean that Barr remains impeached. The Senate is more likely to hold a trial and acquit him (they will probably acquit) to “clear” his name
The trial will allow the nation to scrutinize Trump’s “defense”—that he is allowed to declare himself innocent. It will also make clear that the GOP Senators have taken the position of defending All The President’s Men (and women), no matter what they do.
Impeaching Barr will pave the way for impeaching Trump.
It will teach the nation the process.
It will re-establish Congress as a co-equal branch of government.
It will discourage others from thumbing their nose at Congress.
