Remember Darth Vader–aka Dick Cheney–and his theory of the “unitary executive”? Cheney wasn’t the only devotee of expanded power for the Presidency–it turns out that William Barr is a true believer, and far more dangerous than most of us previously realized.
A recent article in the American Prospect is chilling.
I have Article II, where I have the right to do whatever I want as president,” Donald Trump said in a recent speech to a far-right-wing campus organization. Trump is not a constitutional scholar, and he would not care at all about “constitutional architecture” were he not president. So where did this sweeping claim to executive power come from?….
But for Trump’s attorney general, William Barr, and others on the right, the effort to take power for the president from the courts and especially from Congress has been a 40-year project. Barr and his comrades may find statements like “I have Article II” crass and narcissistic, but in their view Trump is generally correct. Executive power maximalists argue that the “original intent” of the framers of the Constitution was to create a strong president with concentrated power and a largely advisory Congress.
The author notes that the most dangerous presidential power–and one that Trump’s lawyers are currently asserting– is the power to withhold information from Congress and the American people.
Neither Congress nor the courts nor voters can effectively check power abused in secret. And Congress’s power to require information from the president may be the power most difficult to reclaim if Congress yields that power in a tactical retreat in advance of the 2020 election.
Evidently, the expansion of presidential power–and the corresponding evisceration of Congressional authority–has been a 40-year mission for William Barr.
Barr (one of the original founders of the Federalist Society) worked in the Reagan White House with a group of lawyers who argued that the presidency had improperly lost constitutional powers after Watergate. Edwin Meese even asserted that the president could disregard Supreme Court decisions with which he disagreed.
Even very conservative legal scholars consider these assertions unfounded, and there is virtually nothing in the historical record that would support them. (The entire point of “checks and balances” was to thwart an internal “coup” that would turn the president into either a monarch or a servant of Congress.)
After efforts by Reagan’s lawyers to challenge Congressional oversight failed in the Supreme Court,
Barr wrote and circulated throughout the executive branch a militant memorandum entitled “Common Legislative Encroachments on Executive Branch Authority.” The memo called for aggressive challenges to Congress’s claims to authority: “Only by consistently and forcefully resisting such congressional incursions can executive branch prerogatives be preserved.”
As the author notes,
The bread and butter of congressional oversight of the executive branch is to examine executive branch actions and the reasons for those actions. According to Barr, none of that is any of Congress’s business.
Throughout his Executive Branch service, Barr–together with Cheney– has insisted that the President can ignore not only Congressional demands for information, but laws with which he disagrees.
The entire article is worth reading, because it gives needed context to the otherwise inexplicable behavior of William Barr today–behavior that is causing significant morale problems among the professionals at DOJ.
The following paragraphs are representative.
BARR WAS OUT OF GOVERNMENT through the Clinton, George W. Bush, and Obama presidencies, but remained a constant presence in rightist legal circles. On June 8, 2018, Barr sent an unsolicited memo to Rod Rosenstein, the deputy attorney general to whom Robert Mueller then reported, and to Steve Engel, who headed the OLC, entitled “Re: Mueller’s ‘Obstruction’ Theory.” Trump’s firing of Jim Comey as director of the FBI could not be obstruction of justice regardless of Trump’s motives, Barr argued, because the president’s power to remove executive branch officials is “illimitable.”….
BARR AND OTHERS ON THE RIGHT have sought relentlessly for four decades to concentrate power in the president and strip power from Congress. Barr’s legal arguments sound haughty and scary to all but the most ardent Trump supporters. But Barr is committed to presidential power with or without legal authority and with or without public support. And he will advance presidential power by any means necessary, which includes frivolous legal arguments and dilatory tactics forbidden by court rules and canons of legal ethics, and false testimony forbidden by criminal law.
I can’t imagine what philosophy of government would lead someone to Barr’s conclusions, but it is abundantly clear that he represents a clear and present danger to the Constitution as it exists, and to the Separation of Powers it clearly requires.
His attacks on separation of church and state are equally dangerous, but that is an issue for another day…
Do Barr, and these others, believe in concentrated power for a Democratic president? Or is it only for one of their party? In other words, are they really ‘true believers’, or just another group of run of the mill hypocrites?
Sheila,
“I can’t imagine what philosophy of government would lead someone to Barr’s conclusions, but it is abundantly clear that he represents a clear and present danger to the Constitution as it exists, and to the Separation of Powers it clearly requires.”
It’s called: FASCISM. We better start saying it, before it is too late.
From Academia.edu:
“Suddenly, rather than call a spade a spade in [the media’s] coverage of Trump’s hate-mongering [presidential] campaign, his ascendancy to office legitimized those views, and the process of NORMALIZATION [balanced reporting by the press] had begun [and still exists]. The same OBEISANCE led to the Holocaust.”
Sheila,
Thank you!
keep on.
Congressional oversight went out the window with the introduction of our own “Shock Doctrine” beginning with Ronald Reagan (Eliminate the Department of Education, destroy unions, etc., etc.), continued on with George H.W. Bush’s embracing of Lee Atwater and Karl Rove to drive wedges between the citizenry AND the branches of government and is culminated now in the most egregious and naked fascist power grab yet. The commonality? REPUBLICANS and their donor class that sees the Constitution as a nuisance to making more money. That’s it. Oh, I know Todd and ML will say that Democrats are equally involved with this, but to the extent that it is destroying our country, not so much.
If they need to start illegal wars by invading the wrong countries, so be it. We’ll just do what Goering said at Nuremberg: Keep lying to the people about wars and everything, and if they protest, tell them they are being unpatriotic and then throw them in jail. The Rovian/Atwood philosophy still works: Blame your opponents for all things wrong. Never admit to making a mistake. Attack the character and validity of the opposition. The weak-minded gobble this up…and we have SO many weak-minded hypocrites in the country to actually make what Barr is doing a real issue to our own survival as a democratic republic.
Vernon,
“If they need to start illegal wars by invading the wrong countries, so be it. We’ll just do what Goering said at Nuremberg: Keep lying to the people about wars and everything, and if they protest, tell them they are being unpatriotic and then throw them in jail.”
You’re absolutely right. That might be his TRUMP CARD. What else could it be?
To answer Jane’s question. no, they do not believe the same is true for Democratic Presidents. Many of the same people espousing that view today were busy suing the Obama administration for what they deemed Presidential “over-reach.”
barr wrote pardons for GHWB to clear any wrongdoings during his presidency. and this is all true about barr as stated above. like a bolton to war,barr is to law. we now can see how the ploy to unravel 200 plus years of constitutional following,becomes a mere draft overnight. theory be damn,and the people who practice it. barr has given the o.k.. to change at will,while the republican out of controlled senate install the court with rightwing judges, its all a 40 year plan,and no one was watching,and the ones who are,ignored.. shades of germany,1932-34 and we all know how that worked out,except now its to give it all to the wall street money. a new program, a new ideal. give the peasents some,but just enough to pacify them,and keep em working for profit,while we do as we need for our unltimate survival.. kinda worse than a steve king plot..hey steve,how about a book on how this all plays out,seems fitting,since he can tell it and make people actully read it….
Ah. So, now I understand what conservatives mean when they blather on about “limited government.” I suppose, though, there are monarchs who would have in the end preferred some kind of constitutional checks and balances, rather than the ones they got (Charles I, Louis VXI).
Jane- I think that if Barr and his ilk get their way, there won’t be Democratic presidents to worry about. And I’m wondering, if the impeachment proceedings start to get really hot and it looks like the Senate may turn on him after all, whether the short-fingered vulgarian will try to declare a national emergency to suspend Congress for an indefinite period.
I don’t dispute the assertions concerning Cheney and Barr. However, it belies the broader trend of the growth of Executive power, regardless of the party occupying the white house. This has been particularly pronounced beginning in the 20th century.
There are a number of causes for it but the existence of the trend has widespread scholarly agreement, and in itself has contributed to polarized politics.
https://www.washingtonpost.com/news/in-theory/wp/2016/03/08/the-growth-of-executive-power-has-turned-politics-into-war/
No doubt Trump is abusing the constitutional limits of this, as many recent court rulings have demonstrated.
Jack,
“its all a 40 year plan,and no one was watching,and the ones who are,ignored.. shades of germany,1932-34 and we all know how that worked out,except now its to give it all to the wall street money. a new program, a new ideal.”
Terrific analysis. They had to kill off the OUTSIDE first, so that the DEVIANT ELITE could control the INSIDE, THE 99.99%. There’s no legitimate challenge; because there’s no possibility of organized CIVIC COURAGE.
Patrick,
“And I’m wondering, if the impeachment proceedings start to get really hot and it looks like the Senate may turn on him after all, whether the short-fingered vulgarian will try to declare a national emergency to suspend Congress for an indefinite period.”
Keep Wondering.
I have written elsewhere more than once about Barr’s “theory” of unitary executive powers and find no support for his argument that the founding fathers intended to give such powers to the executive in the Constitution, constitutional debates, the Federalist Papers or any other papers – quite the contrary. The founding fathers had just gone through a revolution to rid themselves of the dictatorial regime of King George, so in the absence of any history that they intended to give dictatorial powers to the executive in the organic law of the land (the Constitution), all inferences of their hidden intentions are to be construed as limitations on the powers granted to the executive. Madison, Washington and Jefferson, I am sure, had a new nation to launch and did not want another round of domestic Redcoats and tea parties by executive whim from within.
I think Barr is a fascist looking for an excuse to constitutionally bring his view of the expansion of executive powers (dictatorship) to the fore with such a hare-brained theory unsupported by the record, playing the role of a sort of Rasputin to the Romanov dynasty. I have even considered in my increasingly conspiratorial mind that his call for unitary executive power is pretense designed to divert our attention from something almost as scary – the monopoly the Federalist Society has on naming judicial candidates to lifetime appointments to the bench, a “Society” which he helped co-found and which could result in a judiciary that could in time back door his theory of the ” unitary powers” of the executive into practice, a possibility that should keep us awake nights, and a reason for us to nip this dictatorial nonsense in the bud. I have been around a long time, but this is my first (and I hope the last) time to see an AG advocate dictatorship – and here I thought 1984 was fiction!
Fasces ornamentation had no nefarious connotation before Mussolini. In republican Rome, the chief magistrates were protected in public by lictors: bodyguards who each carried a fasces, a bundle of 12 rods tied together and surrounding outward-facing axes. The lictors used this unwieldy-looking scepter to chastise wrongdoers, and it came to symbolize the coercive power of the consul.
American Founders admired Roman republicanism, drawing from it both their pen names and many of their principles. Thus, the House of Representatives, in one of its first official acts in 1789, adopted the fasces as the emblem of its sergeant at arms. The House fasces—still visible to the Speaker’s right when the full House meets in the House chamber—has 13 rods, one more than in the Roman model, to represent the unified strength of the original American states.
Cass Gilbert, who designed the Supreme Court building, met Mussolini on a 1927 visit to Italy to procure marble for the project. No doubt Gilbert saw the countless fasces in Italian architecture. He was also favorably impressed by Il Duce himself. The man chiefly responsible for the Department of Justice’s sculptural features, C. Paul Jennewein, studied for three years at the American Academy in Rome. While there, he apparently developed a fondness for fasces.
https://www.city-journal.org/html/when-fasces-aren%E2%80%99t-fascist-13651.html
The idea of fascism has been infused slowly in American culture for centuries. I suppose, it’s a natural progression, considering the British, then the American offshoot of the British Empire, are both directly related to the Roman empire. It seems, our current president, desires American government to resemble Roman government, Donald Caesar Trump, and a group of extremely wealthy and influential senators who pull the strings. Governors connected to the Emperor, controlled regions, they were basically the court, and were directly appointed by the Emperor, Pontius Pilate was an example. Later on, Roman Emperor Constantine put the Christian church in charge as a de facto Supreme Court, this remained in effect until the 17th century. It seems, we have students of history in government now that desire this form of government again.
To authoritarians, democracy sucks because it imposes risk on every politicians career and therefor access to wealth and more power.
Gerald,
“I think Barr is a fascist…”
WELCOME into the club.
When I was growing up it seemed pretty common knowledge that the most efficient type of government was the benevolent dictator but none could be found ever because power corrupts and absolute power corrupts absolutely.
Those who went to Spain in the late 30, like Ernest Hemmingway, were known as PRE-MATURE ANTI-FASCISTS. I feel the stirring of momentum toward this unfortunate sense of reality.
I strongly recommend that we should now go into battle weaponized with Vernon’s “Why Angels Weep: America and Donald Trump” along with the Old and New Testaments of the Bible, as well as, the best WARNING INTELLIGENCE “that money can buy.”
Marv,
This is just a natural progression, if you do something slowly enough, it can be imperceptible. This movement towards a Roman form of government, I guess we can call it the 4th Reich, because Rome was the 1st Reich, the 2nd Reich was king Wilhelm, and of course the 3rd Reich was Adolf Hitler. So, Donald Trump and his henchmen see themselves as the 4th Reich. Don’t be too sure, even if he loses the election, he will leave office. The constant harping on the deep state, is enough to give him cover to disregard elections. Possibly, those tea leaves are being misread, but once you get past the trees, the forest is in plain sight. The constant din of insanity has effectively misdirected everyone away from the true intent of those in office. While everyone is chasing the squirrels, the Wolf is in the sheep’s pen feasting.
John,
“This is just a natural progression, if you do something slowly enough, it can be imperceptible.”
Exactly right. Situations also become unavoidable. That’s why we all need to read books like: “The Art of the Long View: Planning for the Future in an Uncertain World” by Peter Schwartz [President of the Global Business Network ] (Doubleday, New York, 1991).
Chamblin’s Book Mine is the premier destination for those visiting downtown Jacksonville, which is not saying much, if you have ever visited downtown Jacksonville. Nevertheless, Huffingon Post has ranked it the 6th best-used book store in the U.S.
Ron Chamblin is an old friend, so when his girlfriend became ill, he asked me to take charge of the cataloging function at the downtown location. It was about six or seven years ago and I did it for about a year. I jumped at the opportunity, as it would give me, access to almost everything that had been written on issues surrounding fascism.
I had, previously, scoured all the used book stores that I could find, especially, in New York as well as having obtained access to the Simon Weisenthal Center Library in Los Angeles.
As a Baby Boomer, I grew up when the term Imperial Presidency was made famous by Arthur M. Schlesinger Jr. in his 1973 book. Schlesinger out lined that since Washington a series of presidents exceeded their authority granted under the Constitution, especially in foreign interventions using our military in undeclared wars.
Various presidents used the Marines and sometimes the Army as an overseas Praetorian Guard to enforce American Imperialism in Latin America in particular.
The way to reverse President Agent Orange and Pastor Pence is to elect a Progressive like Sanders or Warren to the office of President. A Corporate Democrat like Biden will be failure – it will be Neo-Liberalism as usual.
Monotonous,
‘”A Corporate Democrat like Biden will be failure – it will be Neo-Liberalism as usual.”
You’re absolutely right; or, possibly, something much worse.
Barr is potentially the most evil member of trump’s Administration. His deep devotion to the Catholic Information Center’s ultra-conservative beliefs has been central to his determination to force his religious beliefs onto the rest of the country by eliminating the separation of church and state.
If he doesn’t like certain laws then he chooses to just ignore them. It is disgusting that his and others’ in Congress and the Administration are being allowed to get away with refusing to follow the rules set out in our Constitution.
He and Pompeo and pence are pure evil.
Sheila and Marv,
Thank you!
Keep going!
Betty,
You’re right. We can’t stop now while the “undertow” which John Sorg has expressed so well, has TEMPORARILY RECEDED, because of the possibility of impeachment. But there has to be more.
There has to be enough evidence for CONVICTION or the “undertow” will come back with the power of a Tsunami.
I grew up living on the oceanfront at Neptune Beach, which is about 20 miles from downtown Jacksonville. I’ve been caught in many an “undertow” which I learned to battle back from. You can survive by attacking the “undertow” as it recedes, if you’re a strong swimmer which I happen to be at a very early age. However, If you don’t use that method, successfully, more than likely, if there is no lifeguard around, you will drown.
I strongly suggest that’s the position we are in now in with the attempted FASCIST coup being attempted by Donald Trump and his allies. We must keep the momentum going or we will not have a viable future. It will be the death of democracy.
I like that analogy Marv,
another one that seems appropriate is the frog in the pot. If you fill a pot with hot water and drop the frog in its going to hop back out. but if you stick the frog in a pot with warm water and turn it up slowly, the frog just falls asleep and gets boiled and eaten, LOL. We live in constant turmoil, the tumultuous nature of the news, it just makes you sleepy, it makes you tired, and if you fall asleep, you might not wake up. And if you do wake up, it’s going to be a completely different world. As of now, we are the frogs, Trump’s shenanigans are the water, and Trump is the one turning up the heat on the stove. The news media needs to streamline its focus. Stop chasing squirrels. Constantly bring up Trump’s follies and Hammer him continuously. But just like 2016, the news media gets sidetracked on what flaws a particular Democratic candidate might have. They don’t stick to what day should, that’s Donald Trump and his destruction of normalcy, decency, and empathy.
John,
“But just like 2016, the news media gets sidetracked on what flaws a particular Democratic candidate might have. They’s don’t stick to what they should, that’s Donald Trump and his destruction of normalcy, decency, and empathy.”
No doubt that’s a big problem. But a bigger one is the lack of an effective, organized, pro-democracy intelligence effort, coupled with the fact that Congress, for many years, has cut off funds to the FBI for monitoring Far Right/Religious Right movements. That creates a massive INTELLIGENCE GAP where Donald Trump and his “Legions” can operate with impunity.
Another good one, Sheila…..Nancy, I agree with you about Barr, but others who are manipulating the Orange One’s puppet strings include: (and especially) Bannon, who spends almost equal time in Europe spreading his particular brand of Nationalism/Bannonism……along with Miller, Mercer, and we must not forget Hannity. They have very successfully put trump in the limelight while they are perfectly happy insuring that as many judges (qualified or not) are installed. That’s one of the many pronged brilliant strategies they have worked toward for a long time. They knew trump was totally ignorant of anything having to do with governing……The perfect storm of the death of democracy.
Bingo Marv! And again, you have to forgive my lack of proofreading, I need to get better, LOL. I was running around like a chicken with my head cut off today anyway trying to get everything prepared for this snow that’s supposed to be on its way here in Chicago, LOL what a rotten four-letter word snow is. I live trapped a skunk this morning, did you ever try to get a skunk out of your live trap? Very carefully! A couple of weeks ago the dog found that out the hard way. Tomato juice does not get the skunk off, Snicker.
Maywin,
Absolutely! I remember getting on some blogs back in 2015, and my thing was, if Trump is elected, say goodbye to the supreme Court. I was amazed by the amount of ignorance out there. Everybody thought that was stupid, now, everyone sees it as an intelligent Republican strategy, LOL. The news media fell down on the job concerning this issue, it wasn’t “hair on fire” enough. Very very tunnel visioned and short-sighted!
Sheila – right on target – thank you
Pete – you are right that the most efficient government is a benevolent dictatorship, but the only person I see as qualified for that role is — me — and I don’t want it, so we are stuck with trying that messy democracy thing 8)>
John Sorg – I have railed for decades that only the right cares about the courts and the liberal side of the political spectrum lives under the illusion that the Warren court fixed everything and that we have nothing to worry about ever
With Barr, I am reminded of a Non-Sequitur comic of (forgive the inaccuracies – I am going from memory) “alternate world” where everyone’s dreams came true – a man in a chair yelling “boy, bring me my drink” – Danae (the main character) asks Who’s that? Oh, that is Justice Scalia – all of those liberal rulings and laws have been reversed — another voice “Yes, master – coming” – who’s that – Oh that’s Clarence Thomas – he got his wish too
In my fantasy world, President Hedly Lamarr (of Blazing Saddles fame – substitute who you like) uses the Justice Department to convict Barr in secret and imprison him on the word of the President (who of course is a law unto himself)
Similarly, Stephen Miller will have been driven from his home in every neighborhood due to housing covenants (which under the new Federalist Society Supremes are now legal) –